W. Union Telegraph Co. v. Sharp , 5 S.W.2d 567 ( 1928 )

(after stating the facts as above). [1] It appears from a bill of exceptions in the record that, when appellee offered as evidence an instrument in writing purporting to be the message he sent May 27, 1926, as it was delivered to Berdo, and to be an offer to sell the cattle at $20 a head, appellant objected thereto on the ground that appellee on his cross-examination as a witness in his own behalf had stated that the instrument was "just a copy." If the ruling was erroneous, the fact that it was does not appear from the showing in the bill of exceptions. For anything to the contrary appearing therein, other evidence before the court may have overwhelmingly shown that the instrument was the one delivered to Berdo, and not a copy thereof, in which event it is plain it would have been error to sustain the objection on the ground stated. San A. A. P. Ry. Co. v. Lester (Tex.Civ.App.) 84 S.W. 401; Id.,99 Tex. 214, 89 S.W. 752; Dowdy v. Furtner (Tex.Civ.App.) 198 S.W. 647; Mercer Dry Goods Co. v. Fikes (Tex.Civ.App.) 211 S.W. 830; St. L. S.W. Ry. Co. v. Demsey, 40 Tex. Civ. App. 398, 89 S.W. 786.

After the instrument above referred to was admitted as evidence, appellant, in a written motion, asked the court to strike it out, together with other testimony, and complains here that its motion was overruled. Appellant has not referred us to, and we have not found in the record, anything sufficiently showing that the court acted on the motion at all. It is held that, unless the action of the court on such motion is evidenced by a bill of exceptions, the question made by the ruling thereon cannot be reviewed on appeal. Gilroy v. Rowley (Tex.Civ.App.)210 S.W. 623; Holt v. Cave, 38 Tex. Civ. App. 62, 85 S.W. 309.

Over appellant's objection thereto, the court admitted as evidence a letter appellee as a witness testified he received from appellant, as follows:

"Western Union Telegraph Company, "Incorporated. "Gulf Division. "F. A. Mohr, General Manager.

"Dallas, Texas, August 4, 1926.

"Mr. Ed Sharp, Wolf City, Texas — Dear Sir: Your claim for $675.00 must be respectfully declined for the reason that our investigation shows the cows were worth $50.00 apiece, and therefore, when you compromised with Mr. Berdo by accepting $35.00 apiece, you waived your rights to claim against the telegraph company.

"Yours truly,

"[Signed] F. A. Mohr,

"General Manager, Gulf Division."

The grounds of the objection were that "the writer's signature to the letter was not proven up, and said letter, if written by an authorized agent of the defendant, Western Union Telegraph Company, was a mere negotiation between the parties leading up to an attempted settlement between the parties, and was not binding upon the company as an admission of any kind."

The letter purported to be with reference to a claim for damages appellee had made on appellant, and we think should be treated as within the rule admitting as evidence without proof of the execution thereof letters received through the mails relevant to a controversy, and purporting to have been written by a litigant in reply to letters written to him. Sealy Cotton Co. v. Gustafson (Tex.Civ.App.) 258 S.W. 911; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; Hulsey v. Kiser Co., 21 Ala. App. 123, 105 So. 913; Eveland v. Lawson, 240 Mass. 99,132 N.E. 719; Kindle v. Bank, 46 S.D. 645, 195 N.W. 829; 22 C.J. 908, and cases there cited.

The objection was plainly not tenable on the other ground thereof. Other contentions are made in appellant's brief, but we think none of them show error requiring a reversal of the judgment. In fact, as we construe the evidence, it conclusively appeared that the telegram delivered to appellant for transmission to Berdo was an offer to sell the cattle to him at $50 per head, while as delivered to Berdo the telegram was an offer to sell same to him at $20 per head, and further so appeared that the mistake resulted in damages to appellee in the sum exceeding the amount he recovered. We think it would not have been error had the court instructed the jury to return a verdict in appellee's favor for $500. But we think appellee was not entitled to recover interest on the $500 from July 11, 1926, the date the cattle were sold, and that the judgment is erroneous in that particular. It will be so modified as to limit the recovery by appellee to $500 and interest thereon from April 27, 1927, its date, and as so modified, will be affirmed. No complaint of the judgment in the respect it has been determined to be erroneous having been made in the court below, the costs of the appeal will be adjudged against the appellant.