Fant v. Andrews

• Decision Date: 09 June 1898
• Parties: FANT v. ANDREWS et al.
• Court: Texas Court of Appeals

46 S.W. 909

FANT v. ANDREWS et al.

Court of Civil Appeals of Texas.

June 9, 1898.

Appeal from district court, Goliad county; James C. Wilson, Judge.

Action by Andrews & Moody against D. R. Fant. From a judgment for plaintiffs, defendant appeals. Affirmed.

Lane & Hicks, for appellant. Capps & Cantey, Brown & Burns, and Ireland Hampton, for appellees.

GARRETT, C. J.

The appellees, Andrews & Moody, were live-stock commission dealers doing business in Ft. Worth, Tex. In the summer of 1894 the appellant, D. R. Fant, who owned a herd of stock cattle, then in Buchel county, authorized appellees to sell them upon terms stated, and for their services in effecting a sale agreed to pay them a commission of 25 cents a head for the entire herd. In October, 1894, the appellant removed his cattle from Buchel, and placed them with George G. Gray, of Midland, for pasturage. Prior to the pasturage of the cattle with Gray, appellees had offered to sell them to him, and were the means of bringing Gray and Fant together in negotiations for a sale, which was finally effected. There were 6,372 head of cattle in the herd, and the appellees brought this suit for the commission of 25 cents a head, and recovered judgment therefor. It is unnecessary to detail the evidence. We find that the verdict of the jury has evidence to support it, and the above facts are found in accordance therewith.

The first and second assignments of error are upon the action of the court in overruling the motions of appellant to suppress the depositions of T. C. Andrews and George G. Gray. The bills of exception do not show, nor does it anywhere appear from the record, that the appellees had notice of the motion to suppress the depositions. The objections to the depositions were to the form and manner of taking them, and it was necessary for the appellant to give notice of his motion to the opposite counsel before the trial commenced. Rev. St. art. 2289. As appears from the bill of exceptions, the motion was called up at the trial and was overruled by the court. The reason for the action of the court does not appear, and it may have been on account of the want of notice to the appellees required by statute. It not having been made to appear that the action of the court was erroneous, these assignments cannot be sustained.

The third and fourth assignments of error are: (3) "The court erred in overruling defendant's general exception to plaintiffs' petition." (4) "The court erred in overruling defendant's special exception to plaintiffs' petition." We are of the...