Harlingen Land & Water Co. v. Houston Motor Co.

• Decision Date: 29 October 1913
• Citation: 160 S.W. 628
• Court: Texas Court of Appeals
• Parties: HARLINGEN LAND & WATER CO. et al. v. HOUSTON MOTOR CO.

160 S.W. 628

HARLINGEN LAND & WATER CO. et al. v. HOUSTON MOTOR CO.

Court of Civil Appeals of Texas. San Antonio.

October 29, 1913.

Rehearing Denied November 19, 1913.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Action by the Houston Motor Company against the Harlingen Land & Water Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, for appellants. E. P. & Otis K. Hamblen, of Houston, for appellee.

FLY, C. J.

This is a suit on a promissory note executed by appellants to appellee for $2,700, dated March 8, 1908, with certain credits thereon amounting to $1,101.14. It was alleged by appellant that the note was given for a Stoddard-Dayton automobile, sold to them by appellee; that the automobile was warranted to be new and perfect in its parts; that the car was defective and appellants were compelled to buy two new cylinders, a new frame, and a wheel, and in one year bought 14 axles and were compelled to make other repairs. It was further alleged: "By reason of the premises these defendants say that the consideration for which said note was given has wholly failed, which they are ready to verify; that they are entitled to cancellation of said note, or in the alternative by further occasion of the premises, by reason of the various outlays and expenses incurred upon said car, defendants have been injured and damaged in the sum of $1,528.75, actual damages, which they are entitled to recover from the plaintiff or as an offset against plaintiff's demand and for which they now sue." The cause was tried by jury, but a verdict was instructed for appellee, upon which the judgment was rendered.

The motion for new trial is as follows: "Now come the defendants, the Harlingen Land & Water Company and Lon C. Hill, and move the court to set aside the verdict and judgment rendered herein against them and grant them a new trial because the verdict and judgment are contrary to the law and the evidence and because the court erred in instructing the jury to return a verdict in favor of the plaintiff for any amount." The only assignment is: "The court erred in instructing the jury to return a verdict in favor of the plaintiff for any amount, as is shown by defendants' motion for a new trial, in paragraph 1 thereof."

It is provided in article 2020, Rev. Stats., that a motion for new trial "shall specify the ground upon which it is founded, * * * and no grounds other than those specified shall be heard or considered." Construing that statute, rule 68 for district and county courts (142 S. W. xxii) provides: "Grounds of objection couched in general terms—as that the court erred in its charge, and in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence, the verdict of the jury is contrary to the evidence, the verdict of the jury is contrary to law, and the like—shall not be considered by the court."

It is clear that the charge of the court is attacked upon one ground, and that is because the evidence failed to show that appellants were indebted to appellee. It is not claimed in the motion for new trial that the...