Holden v. Evans , 231 S.W. 146 ( 1921 )

Writ of error from a judgment in favor of E. J. Evans against C. W. Holden, growing out of a deal by which the latter, as a real estate dealer and agent of the owner, agreed to sell and deliver to Evans the furniture in a Fort Worth hotel. Defendant in error has filed no briefs, and we are unable to clearly ascertain from plaintiff in error's brief just what the trouble is. The cause was submitted on special issues, but these special issues are not shown in the briefs, nor are the answers of the jury thereto. The judgment of the lower court is not set out in full or in substance in the briefs, and just what that judgment was, or for what amount, is not shown.

The first assignment of error complains of the overruling of the general demurrer, but the statement thereunder is not sufficient to enable this court to determine to its own satisfaction whether or not the petition of plaintiff below was good as against a general demurrer. However, we have examined the petition set out in the transcript, and have concluded that it states a cause of action. The first assignment of error is accordingly overruled.

The second assignment of error is overruled. In that assignment plaintiff in error complains of the action of the court in permitting plaintiff below to file a trial amendment. Such matters are within the discretion of the trial court, subject, of course, to correction for any abuse thereof. We do not think the court in this instance abused that discretion; it is not shown that any injury resulted to plaintiff in error by reason of the exercise of that discretion.

In his third assignment of error plaintiff in error complains of the refusal of the court below to give the following requested special issue:

"At the time defendant entered into the contract to sell to plaintiff the rooming house and property in question did defendant have authority from the owners of said property to sell the same?"

It does not appear in the statement under the assignment whether the matter embraced in this issue was included in any of the issues submitted to and answered by the jury, these issues not being shown in the brief, but in the argument under that assignment it appears that the matter was submitted by the court in a special issue, "whether defendant had authority from the owners to sell upon the particular terms of the contract made by him with Evans"; this quotation being from said argument. Given no more light than shines from plaintiff in error's brief upon this particular transaction, we are not prepared to hold that the court erred in refusing to give this requested special issue; on the contrary, it seems to us that the issue as given was the better way to submit the matter.

We overrule the fourth assignment of error, in which complaint is made of the refusal of the court below to submit to the jury plaintiff in error's requested special issue No. 2. We are unable to determine from the brief whether or not the issue therein tendered was embraced in the special issues actually given, and which are not shown in the brief. No record references are given in the statement under this assignment, either as to the issues given or the issue tendered.

For obvious reasons we also overrule the fifth assignment of error, which we quote:

"The court erred in failing and refusing to submit to the jury defendant's bill of exception No. 4."

The sixth to the ninth assignments of error complain of the alleged action of the court in overruling certain special exceptions of plaintiff in error. No statement is given under either of these assignments. The special exceptions are not set out, in substance or otherwise; it is not shown what action was taken on them; no record references are given. The assignments therefore will not be considered.

The tenth assignment of error, submitted as a proposition and followed by no specific proposition, is as follows:

"It was error for the court to submit the charge to the jury at failed and refused to instruct the jury upon whom rested the burden of proof."

The statement under this assignment gives no record references, nor does it purport to set out the charge given by the court, and is too general to invite consideration. However, it appears that plaintiff in error requested no special charge covering the alleged omission, and the assignment is accordingly overruled.

The eleventh assignment of error complains of the overruling of plaintiff in error's "objections and in submitting to the jury special issue No. 8."

The statement under this assignment does not set out special issue No. S, or the substance thereof, or the objections thereto, and the assignment will therefore be disregarded.

The judgment is affirmed.