W. L. Moody Cotton Co. v. Heard , 243 S.W. 594 ( 1922 )

Appellant complains of the judgment only so far as it was in favor of appellees C. E. Heard, A. G. Heard, Otis Tarlton, and John Fisher for the proceeds of the sale by Bedell of the 13 damaged bales they took from the pond after the fire. The contention with reference to that part of the judgment is that the testimony did not warrant the finding that the 13 bales were bales the parties mentioned stored in the yard The testimony in that respect was far from being conclusive, but we are not prepared to say it was not lacking in probative force as to furnish no support for the finding. The cotton yard consisted of about two acres of land. Most of the cotton was stored in a warehouse in the yard, but 343 bales, including those in controversy, were placed in rows in the open part of the yard. The fires had spread over practically all the 343 bales, burning off marks of identification thereon, at the time the parties named moved the 32 bales to the pond. The evidence relied on to identify cotton said appellees moved to the pond as cotton they stored in the yard consisted almost entirely of testimony that each of said appellees knew the particular place in the yard where his cotton was stored when it was weighed, and that each moved the number of bales he claimed from that particular place to the pond. In addition to testimony of that kind, it was shown that 1 of the 2 bales appellee Fisher stored in the yard was larger at one end than at the other, due to the fact that a tie had fallen off of it, and that 1 of the 2 bales he moved to the pond was without one of its ties and was larger at one end than at the other; and it was shown that appellee C. E. Heard had 7 bales of cotton stored in the yard at the place from which he moved the 6 in controversy, that he moved 7 from that place to the pond, and after the fire was able to satisfactorily identify by marks still on it 1 of the 32 bales in the pond as his cotton. Bedell testified that the cotton in the open yard was moved from time to time, "to get it out of wet places," after it was weighed and stored. Of course, if the cotton was so moved, the testimony on behalf of appellees named that each moved cotton to the pond from the identical place where his cotton was stored in the yard after it was weighed possessed very little, if any, probative force. But the weight to be given Bedell's testimony was for the trial court. The circumstances mentioned above strongly tended to identify the cotton appellees Fisher and C. E. Heard moved from the places where their cotton was stored when weighed as cotton they owned, and to show that all the cotton in the open yard had not been moved from places where it was stored when weighed.

In cross-assignments appellee Bedell complains of the judgment in respects not necessary to specify, as the assignments cannot be considered, because it does not appear from the record that Bedell excepted to the judgment, nor does it appear that his cross-assignments were filed in the court below as required by Rule 101 (159 S.W. xi) for the government of district and county courts. Bridgewater v. Hooks (Tex. Civ. App.) 159 S.W. 1004; Ry. Co. v. Cheek (Tex. Civ. App.) 159 S.W. 427.

The judgment is affirmed.