Denby Motor Truck Co. v. Mears

• Decision Date: 16 March 1921
• Docket Number: (No. 1778.)
• Citation: 229 S.W. 994
• Parties: DENBY MOTOR TRUCK CO. v. MEARS.
• Court: Texas Court of Appeals

Page 994

229 S.W. 994

DENBY MOTOR TRUCK CO. v. MEARS.

(No. 1778.)

Court of Civil Appeals of Texas. Amarillo.

March 16, 1921.

Rehearing Denied April 13, 1921.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Action by J. L. Mears against the Denby Motor Truck Company and others. From a judgment for plaintiff, the defendant named appeals. Affirmed.

Carrigan, Montgomery, Britain & Morgan, of Wichita Falls, for appellant.

Weeks, Morrow, Francis & King, of Wichita Falls, for appellee.

HUFF, C. J.

The appellee, Mears, brought this suit against the appellant, Denby Motor Truck Company, a corporation, C. N. Burg, and Denby Truck Company of Texas, a partnership, composed of Edwin Hobby and T. W. Camp. The appellant alleged that about July 1, 1917, he made a contract with the defendants to purchase from them four two-ton Denby trucks at the agreed price of $1,700, less 25 per cent. commission each, f. o. b. Detroit, Mich.; that he was handling the trucks in Wichita county and adjoining counties at the time he made the contract; that if they had been delivered he could and would have sold same for the price of $1,800 each and would have made a profit of 25 per cent., all of which was fully understood and agreed to; that the defendants accepted his order for the trucks and agreed to deliver the same promptly, but have failed and refused to do so and refused to deliver the trucks at the contract price and repudiated the contract and raised the price of said trucks and refused to deliver the same except at the increased price, and thereby breached the contract, which he alleges has damaged him $1,566. The corporation and partnership answered by exceptions and in effect a general denial. The case was submitted to the jury on special issues:

"Issue No. 1: Did the defendant Denby Motor Truck Company of Detroit agree to deliver to the plaintiff four trucks as alleged by plaintiff? Answer: Yes.

"Issue No. 2: If you answer the first question in the affirmative, then did the said defendant deliver said trucks? Answer: No.

"Issue No. 3: If you have answered the second question in the negative, then you will find what amount, if any, plaintiff was damaged by reason of such failure. In answering this question you will find the damages, if any, to be the difference between the contract price and the net price which said trucks would have sold for by plaintiff, if you find that plaintiff would have sold them. Answer: $1,475.00."

The trial court submitted no issue as to the liability of C. N. Burg, or of the Denby Motor Truck Company of Texas, a partnership. The facts show generally that C. N. Burg had a contract with the appellant corporation to handle its make of trucks in Texas, and that he operated under the name of the Denby Truck Sales Company, and that he was later succeeded by the partnership defendant, Denby Motor Truck Company of Texas. The latter concern shows that it was not in any way connected in the contract or sale to appellee of the trucks in question. The trial court rendered judgment on the verdict of the jury in favor of the appellee against the Denby Motor Truck Company, a corporation, for the amount found by the jury, and from this the appeal is perfected by the corporation.

The first assignment is as follows: "The verdict is contrary to the evidence." This was the ground set up in the motion for new trial which is in the exact language of the assignment. It is manifest, we think, that the assignment is too general and does not distinctly specify the grounds relied upon and cannot be considered by us under Rule 26 or Rule 25 (142 S. W. xii) for this court. Sanger Bros. v. Craddock (Sup.) 2 S. W. 196; Gross v. Hays, 73 Tex. 515, 11 S. W. 523; Stacy v. Delery, 57 Tex. Civ. App. 242, 122 S. W. 300; Railway Co. v. Norman, 91 S. W. 594; Suggs v. Terry, 34 S. W. 354. Neither was the trial court called upon to pass upon the sufficiency of the evidence by the motion for new trial, and was justified in disregarding it on that ground. Rule 68 for district courts (142 S. W. xxii) expressly prohibited that court from considering the motion on such ground so assigned. W. U. Tel. Co. v. Mitchell, 89 Tex. 443, 35 S. W. 4; Clark v. Pearce, 80 Tex. 146, 15 S. W. 787.

The eighth assignment of error is that the court erred in refusing special charge No. 1, which in general terms sought to have the jury instructed to return a verdict for appellant. This assignment is followed by a statement to the effect that the testimony discloses that C. N. Burg, with whom appellee contracted to purchase the motor trucks, was not the agent of the appellant, and by it authorized to bind it for the delivery of the trucks at the price agreed upon between Burg and the appellant. Statement of Facts, 1-39. This includes the entire statement of facts, which is 39 pages, including the index, agreement of counsel, and approval by the district judge. This assignment is not followed by a proposition. From the assignment and the statement made we cannot tell whether appellant contends when the order was given and accepted by Burg the price was not enough or below the then authorized price; whether Burg was an agent for any purpose; whether he was an agent with limited powers; or whether the contract to sell was not within the agent's powers. The trial court in this case evidently found that Burg was such agent as was authorized to make the contract. We must, under this assignment and statement, surmise the proposition of law upon which appellant relies and the facts upon which it relies as sustaining the supposed proposition. If an assignment is not within itself a proposition and not followed by a proposition, it may be considered as waived. Rules 29 and 30 (142 S. W. xii, xiii); Cooper v. Hiner, 91 Tex. 658, 45 S. W. 554; Railway Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510; Pullman Co. v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 318. A general reference to the entire testimony in lieu of the statement necessary and required to support the proposition relied upon, as prescribed by Rule 31 (142 S. W. xii), is not a sufficient statement to entitle the assignment to be considered. Railway Co. v. Wafer, 62 Tex. Civ. App. 74, 130 S. W. 714; Caffrey v. Railway Co., 198 S. W. 810; General Bonding, etc., v. Harless, 210 S. W. 307 (13 and 14). This court has frequently been called upon to apply these rules and has held such assignments and statements defective and as authorizing the court to treat the assignment as waived, and especially where, as in this case, the appellee urged objections to the brief upon such grounds. The first and eighth assignments will be treated as presenting no error, and as abandoned or waived, under the rules.

Assignments 3 to 7, inclusive, are submitted together. They relate to letters introduced in evidence, purporting to be from Denby Truck Sales Company of Dallas, to the appellee, and are dated, respectively, July 28th, August 8th, 13th, 14th, and 17th. Appellant presents one proposition under the above assignments:

"Letters against the interest of a party are not subject to be offered in evidence against him, over his objection, unless the proof first shows or tends to show that such letters were written by such parties or by some one shown to be authorized by him to write the same."

The objection to their introduction made at the trial was that the letters are not shown to have been written by either defendants or by any one by either authorized. The effect of the letter of August 8th was to notify appellee that the factory was shipping the trucks ordered; the letter of the 13th, that the Denby Sales Company was just in receipt of a letter from the factory that it would be impossible to fill any more orders at the old price and that the orders then in the factory would not be delivered unless taken at the new price, and if their representatives or agents insisted or demanded that the orders placed prior to June 1st be filled at the old price, such would be considered sufficient cause to cancel their contract. It was stated therein that it would hit appellee hard, as he had an order in for four two-ton trucks, to be shipped at the old price, but that the writer could not lose the agency, etc., by refusing to take the cars at the new price. The letter of August 14th stated that the Sales Company understood that the factory had shipped out to appellee a carload of trucks and to let it know if the car was to be handled upon the same basis. The letter of August 17th stated:

"In answer to your letter of the 14th regarding trucks in transit, the goods are billed at new price. In your letter you state, `If trucks are at new price we will not buy them.' If this is your purpose wire me so I can make arrangements to handle them and also get another agent"—and other matters not necessary to state at this time.

The letter of July 25th notified appellee they had two two-ton trucks to be sold at new price. If appellee had some important sales and might lose the orders taken, the Sales Company, under such circumstances, would be willing to split the difference between new and old price. The...