Friesenhahn v. Tips Engine Works

• Decision Date: 10 March 1926
• Docket Number: (No. 6940.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 283 S.W. 341
• Parties: FRIESENHAHN et al. v. TIPS ENGINE WORKS.
• Court: Texas Court of Appeals

283 S.W. 341

FRIESENHAHN et al. v. TIPS ENGINE WORKS.

(No. 6940.)^*

Court of Civil Appeals of Texas. Austin.

March 10, 1926.

Rehearing Denied April 14, 1926.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by Jacob Friesenhahn and others against the Tips Engine Works. Judgment for defendant and plaintiffs appeal. Reversed and remanded.

Adolph Seidemann, Schleyer & Treisch, and Frank B. Voigt, all of New Braunfels, and Guinn & McNeill of San Antonio, for appellants.

White, Wilcox, Graves & Taylor, of Austin, for appellee.

BAUGH, J.

On or about March 3, 1923, the appellants made and entered into a written contract with the Tips Engine Works, then operating under the name of Tips Foundry & Machine Company, whereby appellants agreed to purchase for future delivery "one 100 H. P. Tips type J. vertical 3-cylinder oil engine complete with all fittings and fixtures." This contract, amongst numerous other provisions, provided that "the machinery herein specified is guaranteed by the seller to be well made, of good material, in a workmanlike manner"; and also that —

"If requested, after the machinery is properly installed, seller's engineer will, at purchaser's expense, operate the same three (3) days, demonstrating that the engine will furnish needed reliable power to operate purchaser's plant consisting of 4-80 Munger gin system with air blast and regular equipment, and that the engine will operate successfully using as fuel the following: [Designating the character of fuel required]."

Said engine was subsequently, on or about June 1, 1923, shipped by appellee to appellants at Comal, Tex., and draft for the purchase price of $5,500, with bill of lading attached, drawn by appellee on appellants, sent to a bank at New Braunfels. After some controversy this draft was paid, and the engine unloaded and installed in appellants' gin. Not having proved satisfactory to appellants after use during the ginning season of 1923, and having failed to adjust their differences amicably with appellee, this suit was filed by appellants, asking for damages for breach of warranty of said written contract. Appellants alleged that the engine was defective in numerous respects, in materials, in workmanship, and in operation, and especially that it breached said contract by failure to furnish needed reliable power to operate appellants' gin as contracted for. Appellee, Tips Engine Works, defended, among other things, on the ground that the defects in the engine, if any, had been removed; that said engine furnished the power contracted for; that the failure to successfully operate appellants' gin was caused by the failure of the plaintiffs to install and equip their gin system with the regular equipment called for in the contract; and that they had geared their gin equipment so as to operate same at an excessive and unusual rate of speed, thus overloading the engine.

The case was submitted to a jury upon the following special issues:

"Question No. 1. Did the defendant deliver to the plaintiffs an engine capable of developing 100 horse power, in accordance with the written contract entered into by and between the plaintiffs and defendant, introduced in evidence in this case? Answer this question `Yes' or `No.'

"Question No. 2. After the defects (if any) in said engine had been removed (if they were removed) by the defendant, Tips Engine Works, did the engine which was furnished by defendant to plaintiffs under the contract entered into by and between plaintiffs and defendant furnish needed reliable power to operate plaintiffs' plant, consisting of 4-80 Munger gin system with air blast and regular equipment? Answer this question `Yes' or `No.'

"Question No. 3. Did the plaintiffs fail to equip their gin plant in the usual and regular way, and equip it in such manner as to require it to run and operate the machinery at an unusual and excessive rate of speed? Answer this question `Yes' or `No.'

"Question No. 4. If you answer `Yes' to question No. 3, then answer this question: Did the fact (if it be a fact) that said plant was not equipped in the usual and regular way require more than 100 horse power to pull said plant at such unusual and excessive rate of speed (if there was any unusual and excessive rate of speed)? Answer this question `Yes' or `No.'"

The jury answered each of said questions in the affirmative. The court thereupon rendered judgment that the appellants take nothing; from which judgment this appeal is prosecuted.

Appellants' brief is not prepared in accordance with the rules, and has rendered us little assistance.

Their first four assignments and the first seven propositions thereunder complain of the action of the trial court in striking out portions of appellants' petition by sustaining appellee's exceptions thereto. Neither in the judgment nor elsewhere in the transcript do we find that the trial court made and entered any order acting upon said exceptions. The bill of exceptions does show that the trial court sustained said exceptions, but this is not sufficient to authorize us to consider these assignments. As stated in Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899:

"The courts of this state have repeatedly held that the action of the trial court on demurrers will not be reviewed on appeal in the absence of a judgment entry showing the ruling of the court, although the ruling is made to appear in a bill of exception."

See, also, Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 471; Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442; Railway Co. v. Cartwright (Tex. Civ. App.) 151 S. W. 630.

Nor is there any merit in appellants' assignments c and 6. Appellee offered in evidence portions of appellants' letter to it, dated August 30, 1923, containing admissions against interest, chiefly that the engine had no defect except failure to furnish sufficient power. The other portion offered by appellee merely recited the terms of the contract, the claimed breach, a refusal by appellants to accept the engine, and made demand for a return of the purchase money, and damages. The letter is too long to set out here. In rebuttal the appellants then offered the remainder of said letter. The portion offered by appellants themselves contained hearsay statements and self-serving declarations and conclusions — in brief, it set forth fully the contentions of the appellants upon which this suit was brought. Thereupon, in surrebuttal the court admitted the reply of the Tips Engine Works to said letter, which set forth in full the appellee's side of the controversy, substantially as pleaded by it in defense to this suit.

The rule is well settled that, where one party offers a part of an instrument, the other party may offer the remainder, if same affords an explanation of the first portion offered, to the end that a complete understanding of the tenor and effect of the whole instrument may be had. This rule, however, is subject to limitation that no more of the remainder than concerns the same subject and is explanatory of the part offered is receivable. This exception, however, has not been rigidly enforced. See 3 Wigmore on Evidence, § 2113, p. 2861. If this rule were enforced as to the portion of their own letter offered by the appellants themselves, it perhaps should have been excluded as not being altogether explanatory of the portion offered by appellee. Having thus opened up the correspondence between the parties, relating to the controversy, the appellants cannot complain that appellee offered the remainder of the correspondence setting forth its contentions in the controversy. The error, if any, was invited by the appellants themselves. See 3 Wigmore on Evidence, § 2104, p. 2844; 22 Corpus Juris, § 163, p. 196, and notes thereunder; Werner v. Kasten (Tex. Civ. App.) 26 S. W. 322; Shaller v. Allen (Tex. Civ. App.) 278 S. W. 873.

Appellants' seventh assignment of error complains of the refusal of the court to instruct the jury to return a verdict in favor of plaintiffs. This assignment is overruled. The issues as pleaded were clearly drawn and the evidence conflicting as to whether the difficulty in the operation of the gin was due to failure of the engine to furnish adequate power, or to the manner in which the appellants operated their gin. They were not, therefore, as a matter of law, entitled to an instructed verdict.

The eighth assignment of error was as follows:

"The court erred in overruling pla...