Perkins v. Buaas

• Decision Date: 09 October 1895
• Parties: PERKINS et al. v. BUAAS.
• Court: Texas Court of Appeals

32 S.W. 240

PERKINS et al. v. BUAAS.

Court of Civil Appeals of Texas.

October 9, 1895.

Appeal from Travis county court; William Von Rosenberg, Judge.

Action by Perkins & Son against J. O. Buaas on a promissory note. Judgment for defendant. Plaintiffs appeal. Reversed.

Fiset & Miller, for appellants. West & Cochran, for appellee.

KEY, J.

Appellants sued appellee on a promissory note for $200 in a justice's court, but in due course of procedure the case reached the county court. Appellee pleaded a failure of consideration resulting from alleged fraudulent representations made by appellants, and their failure to furnish him a crimping machine, etc. The fourth bill of exceptions shows that appellee offered in evidence two pictures taken from catalogues received by him; that they were offered "to show that double corrugated iron shutters, of the kind the patent right for which the plaintiffs sold to defendant, were made and sold in the United States." The plaintiffs objected to these photographs, among other reasons, because they were not the best evidence of the facts they were offered to prove, and the action of the court in overruling their objections and allowing the photographs to go before the jury as evidence is assigned as error. This assignment must be sustained. Under appellee's plea of fraud, the fact that others were manufacturing and offering to sell shutters of the kind referred to was very material, and the best evidence of that fact would have been the testimony of the manufacturers themselves, or of some one else who had actual knowledge of the facts. The testimony objected to indicates that other and better evidence can be obtained, and therefore it should have been excluded. Other evidence is objected to as being incompetent. This objection is too general. Evidence that is not admissible for any reason may be said to be incompetent. Therefore, when evidence is objected to, the particular ground of objection should be stated. Concerning the objection made to appellee's pleading, without holding that the plea is bad, we suggest that it be amended by an offer to cancel the instrument conveying the patent right and to return whatever property, if any, of value, appellee may have received from appellant. We deem it improper to express any opinion on the facts. Assignments presenting other questions are overruled. For the error pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.