Watson v. Winston

• Decision Date: 11 December 1897
• Citation: 43 S.W. 852
• Parties: WATSON v. WINSTON et al.
• Court: Texas Court of Appeals

43 S.W. 852

WATSON v. WINSTON et al.

Court of Civil Appeals of Texas.

December 11, 1897.

Appeal from Ellis county court; J. C. Smith, Judge.

Action by William Winston and another against S. H. Watson. From a judgment entered on a verdict for plaintiffs, defendant appeals. Reversed.

This was a suit brought in the county court of Ellis county, Tex., by appellees, William Winston and G. B. Higginson, composing the firm of Winston & Higginson, against appellant, S. H. Watson, for the price of certain goods, wares, and merchandise, consisting of certain mantles, grates, and tiling, alleged in appellees' first amended original petition (on which the case was tried, to have been sold to appellant, at his instance and request, on or about June 9, 1896, for which it was alleged appellant verbally agreed to pay appellees, on demand, $266.95; and to this petition a sworn itemized account, containing a description of the goods, was attached, marked "Exhibit A," and made a part of the petition. Appellees alleged that said goods had never been paid for, and prayed judgment against appellant for $266.95, and costs of suit. Appellant answered by first original answer filed January 4, 1897, and pleaded to said petition a general demurrer, special demurrers Nos. 1, 2, and 3, and a general denial; and for further answer, by special sworn plea, denied, under oath, the justness of each and every item of the verified account marked "Exhibit A," and made a part of appellees' first amended original petition, and alleged that each item was wholly unjust; that he never bought any such goods, or authorized any one for him to do so; and further pleaded, under oath, that appellees claimed to have an order for such goods alleged to have been signed by appellant, but that he never signed such order, or authorized any one for him to sign it, and if he did sign such an order it was signed by the fraud of appellees and its agent, Burgess, in concealing from appellant the contents of same. The case went to trial on these pleadings. There was a trial, with the aid of a jury, which resulted in a verdict for plaintiffs for $266.95, upon which judgment was duly entered. Defendant filed his motion for new trial, which being overruled he excepted, gave notice of appeal, and has prosecuted an appeal to this court.

C. M. Supple, for appellant. Sherrod & Singleton, for appellees.

BOOKHOUT, J. (after stating the facts).

Appellant assigns as error: "The court erred in admitting in evidence what purported to be a written order, which is set forth in defendant's bill of exceptions No. 3, embracing terms and conditions of sale of goods, because the same was not signed by any one, and because it was not shown that defendant ever accepted or agreed to terms thereof, or that he knew of same, and because it was setting up a cause of action predicated upon a written order and sale of goods, when plaintiffs' first amended original petition, on which they went to trial, declared on a verbal order and sale." In June, 1896, one Boze had a contract with the defendant, S. H. Watson, to remodel the residence of defendant. The contract stipulated that Boze was to furnish $200 worth of mantels as a part of said work. One Burgess was agent of plaintiffs, who are manufacturers of mantels at Louisville, Ky. About June 9, 1896, Boze met up with Burgess in Waxahachie, Tex., and told him he had an order for him for mantels and tiling for defendant's house. Burgess accompanied Boze to the house of defendant, and introduced him to the defendant and other members of the family. There was a sharp conflict of testimony as to what was said and took place in reference to the order for the tiling and mantels. Burgess testified that he told defendant that he had called to sell him mantels and tiling for his house; that defendant asked witness the prices, and stated that Mr. Boze was to furnish $200 worth of mantels and tiling at factory prices, delivered at Waxahachie, and goods selected in excess of that amount were to be paid for by defendant. Defendant explained the reason he asked about factory prices was that he wished to get any commission to which Boze was entitled. Witness says he told defendant that plaintiffs had nothing to do with the contract between defendant and Boze, but that plaintiffs would look to defendant, and not to Boze, and that defendant and Boze could settle their own affairs. The mantels and tiling were selected, amounting to $266.95, and witness Burgess says he wrote a description of same in an order form of plaintiffs, and handed defendant a copy of this order. On the trial plaintiffs offered this order in evidence, to which defendant objected for the reasons above stated in the first assignment of error. The court overruled the objection, and admitted the order sheet in evidence. We do not think the court erred in admitting this order sheet. It was a memorandum made at the time of the transaction, and is admissible as a part of the transaction, as tending to show what did take place, and is res gestæ. Goldman v. Blum, 58 Tex. 641.

But appellant insists that there were printed conditions and stipulations amounting to a contract contained in the order sheet, and, the order sheet not having been signed by the defendant, it was...