Houk v. Berg

• Decision Date: 30 October 1907
• Citation: 105 S.W. 1176
• Parties: HOUK v. BERG et al.
• Court: Texas Court of Appeals

105 S.W. 1176

HOUK v. BERG et al.

Court of Civil Appeals of Texas.

October 30, 1907.

Rehearing Denied December 18, 1907.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by Coley Berg against L. W. Houk; Josey-Miller Company being brought in as a defendant. From a judgment of the county court for plaintiff and for defendant company, on appeal from a justice's judgment for plaintiff against defendant Houk, and for Houk against the company, Houk appeals. Affirmed.

G. P. Dougherty, for appellant. Teagle & Conley, and Blain, Howth & Adams, for appellees.

FLY, J.

This suit originated in the justice's court, and is founded on a demand held by Coley Berg against appellant. The demand was for damages resulting from the death of a horse and the sickness of a mule, alleged to have been caused by decayed and adulterated bran sold by Houk to Berg. Appellant had the Josey-Miller Company made a party, alleging that he had bought the bran from that company, and asking for judgment against it in case Berg recovered against him. The justice of the peace rendered judgment in favor of Berg against Houk for $106, and in favor of Houk for the same sum against the Josey-Miller Company. On appeal to the county court, judgment was rendered in favor of Berg for $106.75 against Houk and against the latter on his claim against the Josey-Miller Company.

The petition alleged that plaintiff had contracted to purchase six sacks of "good, wholesome, first-class bran" from appellant, and that he had sent a mixture of "rotten bran, rice, and other conglomerations of decayed substances, the nature of which is unknown to plaintiff." He further alleged that he "did not examine the said bran when he ordered the same, but relied solely upon the representations of the defendant that the said feed was good, wholesome, and first-class in every particular." The pleading is very uncertain and indefinite, but it appears to be an effort to declare on the implied warranty incident to the sale of the bran, as well as on an express warranty of its soundness, and no exceptions were urged against the petition in the court below. We think, under such circumstances, proof of an implied warranty was sufficient to make out a case. No question of a failure or refusal to deliver bran was raised by pleading or evidence, and consequently there could be no question as to payment by Berg for the bran.

The court passed on the sufficiency of the evidence to sustain the claim for damages, and we cannot hold that the evidence is not sufficient. The veterinary surgeon testified that the death of the horse ...