Hazelrigg v. Naranjo

• Decision Date: 23 February 1916
• Docket Number: (No. 5621.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 316
• Parties: HAZELRIGG v. NARANJO.
• Court: Texas Court of Appeals

184 S.W. 316

HAZELRIGG v. NARANJO.

(No. 5621.)^*

Court of Civil Appeals of Texas. San Antonio.

February 23, 1916.

Rehearing Denied March 22, 1916.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by Francisco Naranjo against J. B. Hazelrigg. From a judgment for plaintiff, defendant appeals. Affirmed.

Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellant. H. G. Dickinson, of Laredo, for appellee.

MOURSUND, J.

Francisco Naranjo sued J. B. Hazelrigg for $2,540 alleged to be due for 127 head of horses and mules sold by Naranjo to Hazelrigg. Hazelrigg admitted that he bought 127 head of horses and mules from plaintiff, through his agent, Vicenta Garza, but alleged that as a part of said agreement he (Hazelrigg) paid the duties, both export and import, from Mexico to the United States, of approximately $10 per head on 200 head of horses, and it was agreed that the same should be repaid to defendant out of the purchase price of said horses, and that thereafter said 200 head of horses were placed in a pasture, and charges of $250 accrued for their pasturage; that thereafter the number of horses was reduced by "death, purchase and claims of others" to about 127 head, and defendant, through an agreement with said Garza, took the same at the rate of $20 per head, with the understanding that the duties as well as the pasturage advanced by defendant should be deducted from the price; and that therefore he only owes to plaintiff $300.

Plaintiff, by supplemental petition, admitted that he was bound to pay the duties, and alleged that through his agent, Segundo Villareal, he paid to defendant $2,000, the full amount of said duties. He denied that he agreed to pay defendant the pasturage, or to deduct same from the purchase price of the horses. Defendant, in answer to such petition, denied the facts therein alleged, and alleged that none of the sums mentioned in his answer had been paid or allowed him. Upon the trial plaintiff agreed that defendant was entitled to an offset of $250 for pasturage paid by him. Judgment was rendered in favor of plaintiff for $2,290.

Appellant complains of the refusal of his first application for a continuance, wherein he alleged that the testimony of plaintiff, Naranjo, and Vicenta Garza was material to his defense. He alleged that he expected to prove by said witnesses that for two years he had been dealing with plaintiff in the buying and selling of cattle, and that during said time they had been running an open account, and that he had paid various sums to the plaintiff, and does not know the exact status of said account, but that said Garza, the manager and agent of Naranjo, has kept accurate account, and that the matter sued on by plaintiff is dependent upon the status of the account between plaintiff and defendant. No effort is made to show in what way there is any connection between the contract for the sale of the horses and the alleged account concerning purchases and sales of cattle. There is no pleading which would make said testimony material, and the allegations in regard thereto were not sufficient to require the granting of the application.

It was further alleged in the application that he had paid the duties on the horses as pleaded by him, and that he was entitled to an offset on the amount of duties paid to the extent of approximately $2,000, and that these facts are known to Garza and plaintiff, and that, if said parties were present, he would be able to show such facts by them, or at least by Garza. It will be noted that appellant refrained from alleging that such duties had not been paid to him by plaintiff, or in his behalf, and leaves such fact to be inferred from the conclusion that he is entitled to the offset. It has been held that the statement of conclusions is not a compliance with the statute. East Texas Land & Improvement Co. v. Texas Lumber Co., 21 Tex. Civ. App. 414, 52 S. W. 645; Earl v. State, 33 Tex. Civ. App. 161, 76 S. W. 207. An appellate court in passing upon an assignment complaining of the overruling of an application for a continuance may look at the evidence taken upon the trial to determine whether the testimony desired was, in fact, material and whether any injury resulted by reason of the absence of the witnesses. Crouch v. Johnson, 7 Tex. Civ. App. 435, 27 S. W. 37; Railway v. Brooks, 132 S. W. 95; Mutual Life Ins. Co. v. Garvin, 141 S. W. 797. Upon the trial it was shown without contradiction that Garza had nothing to do with the transaction with reference to payment of duties, that he was in Monterey at the time, and that Segundo Villareal by direct authority of plaintiff paid to Bob...