Sparks v. De Bord

• Decision Date: 14 May 1908
• Citation: 110 S.W. 757
• Parties: SPARKS v. DE BORD et al.
• Court: Texas Court of Appeals

110 S.W. 757

SPARKS v. DE BORD et al.

Court of Civil Appeals of Texas.

May 14, 1908.

Appeal from Hopkins County Court; T. J. Russell, Judge.

Action by J. D. De Bord and others against one Davidson, who vouched in J. B. Sparks as a party. There was a judgment in favor of plaintiff against defendant Davidson and in favor of defendant Davidson against J. B. Sparks, and he appeals. Reversed and remanded.

D. Thornton, for appellant. C. E. Sheppard and B. W. Foster, for appellees.

LEVY, J.

The appellee J. D. De Bord sued appellee Davidson in the justice court of precinct No. 2, Hopkins county, to recover a horse and saddle and the value of the use thereof. Davidson answered the suit, and pleaded that he had bought the property from appellant, who had warranted the title thereto, and vouched in appellant as a party to the suit. The case was tried in the justice court, and then appealed to the county court. In the county court there was a trial before a jury, and in accordance with the verdict a judgment was entered in favor of De Bord against Davidson for the horse, and in favor of Davidson against the appellant as warrantor for the value of the horse. Appellant brings the case on appeal.

The evidence complained of in the first assignment of error is admissible, and not subject to the objections urged. The witness was present and heard the conversation between the parties, and his evidence in this respect would not be classed as hearsay. That the appellant was not present at the time would not affect its admissibility as evidence in this case upon the point for which the evidence was offered. Neither would the evidence be objectionable on the ground of a subserving declaration, because the testimony related to an actual occurrence purporting to have taken place between the parties concerning the horse and its use.

The fourth assignment complains of the following portion of the court's charge: "If you find that the plaintiff at the time the suit was brought was the owner of the horse sued for, and that he was not estopped from recovering under the above charges, or that the defendants knew of plaintiff's claim or had such notice as would put them on inquiry concerning his claim, then you will find for the plaintiff and the defendant Davidson." The contention is that appellant having purchased the horse from Wilkins in good faith, paying a valuable consideration therefor, without notice of appellee De Bord's claim to the horse, appellant's interest in...