Citizens' Garage Co. v. Wilson

• Decision Date: 16 May 1923
• Docket Number: (No. 6961.)
• Citation: 252 S.W. 186
• Parties: CITIZENS' GARAGE CO. v. WILSON.
• Court: Texas Court of Appeals

Page 186

252 S.W. 186

CITIZENS' GARAGE CO. v. WILSON.

(No. 6961.)

Court of Civil Appeals of Texas. San Antonio.

May 16, 1923.

Appeal from Victoria County Court; I. D. Fowler, Judge.

Action by the Citizens' Garage Company against W. T. Wilson. From judgment for defendant, plaintiff appeals. Reversed and remanded.

C. C. Carsner, of Victoria, for appellant.

Fly & Ragsdale, of Victoria, for appellee.

SMITH, J.

In August, 1920, appellee Wilson left his Dodge automobile in appellant's repair shop for repairs. The work alleged to have been done on the car by appellant was completed in November, 1920. The original amount of the garage company's bill for repairs done and labor performed on the car was not shown, but is alleged to have "largely" exceeded $476.00! (Exclamation point ours.) Wilson could not pay the bill, however, and the car remained in appellant's shop for a further period of 13 months, or until December 21, 1921, when Wilson again called for his car. The parties had a controversy about the amount of the bill, Wilson contending that it was excessive! The controversy was settled, however, by the parties agreeing upon the sum of $476.56, of which amount Wilson paid $100 cash, giving his notes for the balance, one note being for $50, and another for $326.56, to be paid in monthly installments of $20 each. He also gave a chattel mortgage on the car to secure the payment of the last-mentioned note; the $50 note being inadvertently omitted from the mortgage. Wilson defaulted in the payment of the first three installments, and the garage company brought this action to recover on the larger note, and to foreclose the mortgage on the automobile. A jury trial resulted in a verdict and judgment for the defendant, Wilson, and the garage company has appealed.

While admitting that he had left his car with appellant for "minor repairs," and also admitting the execution and delivery of the note and mortgage, appellee, Wilson, sought to wholly defeat the suit upon the ground that he had executed the note upon the representation of appellant that the car, when repaired and delivered to him by appellant was in "A1" and "first-class" condition, and as good as it was when it left the factory, except in external appearance; that as a matter of fact the car was in no better condition at that time than it was when he left it with appellant to be repaired, although he was not aware of the fact, and could not possibly ascertain the fact, until after he had received it from appellant and executed the note. By reason of these facts, which were set out in great detail, appellee pleaded total failure of consideration.

Appellee objects to the consideration of appellant's first assignment of error, and this objection must be sustained. In this assignment complaint is made of the admission of evidence "as to how the defendant's car was brought to plaintiff's garage, or placed in plaintiff's charge for repair." In the bill of exceptions upon which this assignment is predicated, the objectionable evidence is described as —

"All testimony of the witness W. T. Wilson to all facts and circumstances leading up to the delivery of the Dodge car to the Citizens' Garage for repair, and all testimony of the same witness as to the authority of the said Citizens' Garage Company to make the repairs upon said car and create the account out of which, or for which, the note sued upon was given. Also the testimony of the witness, Mrs. L. A. Weatherly, concerning the same facts."

As will be seen, none of the evidence objected to is set out in the bill, as required by district court rule 59 (142 S. W. xxi). The office of a bill of exceptions is to segregate the objectionable testimony from that to which the party at the time offers no objections, so that the reviewing court may have before it the concrete question raised by the transaction. It may be that appellant's objections in the court below embraced testimony that was clearly admissible as against the objections and that for this very reason the court overruled the objections. The purpose of the bill is to segregate and set out the very testimony sought to be excluded, and if it omits to do this it cannot support an assignment of error.

For similar reasons we are obliged to sustain appellee's objections to appellant's third assignment of error, in which complaint is made of the exclusion of evidence offered by appellant. In neither the assignment nor bill of exceptions presented in support thereof is the proffered testimony set out, nor is it shown what the rejected witness would have sworn to had he been permitted to testify. Moreover, the bill does not disclose the objections upon which the testimony was excluded. It may be that the specific objections urged by appellee to the admission of this testimony were well taken, or they may have been without merit; if well taken, the testimony was properly rejected, but if without merit the testimony should have been admitted. So the admissibility of the testimony over the objections made cannot be...