Tuttle v. Robert Moody & Son

• Decision Date: 12 December 1906
• Parties: TUTTLE et al. v. ROBERT MOODY & SON.
• Court: Texas Supreme Court

Page 1037

97 S.W. 1037

TUTTLE et al. v. ROBERT MOODY & SON.

Supreme Court of Texas.

December 12, 1906.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by W. W. Tuttle and others against Robert Moody & Son. From a judgment of the Court of Civil Appeals affirming a judgment in favor of defendants, plaintiffs bring error. Affirmed.

See 94 S. W. 134.

H. G. Hendricks and Veale Crudgington & Bailey, for plaintiffs in error. H. E. Hoover, W. D. Fisher, Willis & Willis, and W. O. Davis, for defendants in error.

WILLIAMS, J.

This writ of error was granted because of apparent error in the admission of certain testimony of the witness Walsh at the trial in the district court, but the record, when understood, fails to show that there was error.

The action was for damages for breach of a contract whereby the defendants agreed to pasture cattle for the plaintiffs in order to fatten them for market, furnishing for the purpose sufficient grass and water. The breach alleged was the failure to furnish sufficient water. One of the consequences averred to have resulted was that the cattle did not fatten and increase in weight as they would have done, and therefore sold for less money than they would have brought had the contract been performed. It was shown during the trial that some of the same herd were grazed during the same time in another pasture in Oklahoma, about 100 miles from that of the defendants; that they were afterwards shipped to the same market at or about the same time with those in question; and that they were not in as good condition, and did not sell as well as the latter. The witness Walsh was in charge of the Oklahoma pasture, and was introduced to show that there was no deficiency of grass or water in that pasture to account for the condition of the cattle there grazed. Substantially all of the testimony he gave upon the subject is set out in the bill of exceptions, and the objection was urged to the whole, on the ground that it was irrelevant and immaterial, and that "no proper standard of comparison between the Moody pasture and the Woodward pasture had been established, and that the same was not a proper subject for expert testimony, and the witness not qualified to speak thereof." This objection seems to have been based upon the witness' statement that he knew nothing of the character of the defendants' pasture beyond a general knowledge of the character of the range throughout that region. An objection...