3. — Cases Qualified. The following cases, for conflict of which with the ruling herein writ of error was granted, are, it seems, hereby materially qualified, if not overruled. Levy v. Lupton, 156 S.W. 363; American Warehouse Co. v. Ray, 150 S.W. 764; Ward v. Odem, 153 S.W. 634. (Pp. 508, 509). 4. — Statement of Facts — Copying into Transcript.
The effect of the non-warranty, in its broadest application, would be to protect the company from damage resulting from the planting of any seed it might send out, that is, crop damage. Jones v. George; Handy v. Roberts (Civ. App.), 165 S.W. 37; Markham Warehouse Elevator Co. v. Plotner Stoddard (Civ. App.), 140 S.W. 356; Harkey v. Hindman (Civ. App.), 19 S.W.2d 151; American Warehouse Co. v. Ray (wr. ref.), 150 S.W. 763; Cheboygan Paper Co. v. Eichberg, 184 Mich. 30, 150 N.W. 312. Judge Fly in the Plotner Stoddard case quoted from Columbian Iron Works v. Douglass 84 Md. 44, 34 A. 1118, the holding that in case of delivering any article other than that which "was the named and designated, the specific and identical, thing contracted for * * *," the buyer had "the right to insist on the terms of his contract.
It is manifest from the opinion of the court above quoted that the holding that a bill of exceptions should have been taken at the time the ruling of the court was made was based upon the fact that the ruling of the court did not otherwise appear of record. In the case of American Warehouse Co. v. Ray, 150 S.W. 764, the Court of Appeals for the Fourth District refused to sustain an assignment complaining of the ruling of the trial court on a plea of privilege, because there was no bill of exceptions taken to the ruling. From the statement in the opinion the ruling complained of was not otherwise shown by the record. The court also, after citing rule 55 for the district and county courts ( 104 Tex. 667, 142 S.W. xxi), which provides that as to rulings of the court upon application for continuance, for change of venue, and other incidental motions, bills of exceptions must be taken, says that, "as a plea of privilege now amounts to nothing more than * * * a change of venue, * * * it seems to come within the very language of" the rule.
Appellee Coalson insists that appellant Holmes is in no position to complain of the action of the court in overruling the plea of privilege at the former term of court, since he reserved no bill of exception to that ruling. In support of that contention he cites rules 53, 54, and 55 (142 S.W. xxi), adopted by our Supreme Court to control the procedure in district and county courts; also the decisions of the Court of Civil Appeals in Levy v. Lupton, 156 S.W. 362; Ward v. Odem, 153 S.W. 634, to which might be added several other decisions of like effect, including Campbell v. Cates, 51 S.W. 268; American Warehouse Co. v. Ray, 150 S.W. 763. In each of the decisions noted it was held that a judgment overruling defendant's plea of privilege will not, upon appeal, be reviewed, in the absence of a bill of exceptions showing such ruling.
) The bill of exceptions to the interlocutory overruling of the plea of privilege for change of venue not having been taken until a later term, after several intervening terms, came too late to be considered, Marshall v. Spillane, 27 S.W. 162; Waco lee Refrigerating Co. v. Wiggins, 32 S.W. 58; Levy v. Lupton, 156 S.W. 362; Am. Warehouse Co. v. Ray, 150 S.W. 763; 3 Ency. of Pl. Pr., p. 466. MR. CHIEF JUSTICE PHILLIPS delivered the opinion of the court.
The courts will enforce contracts and give relief for their breach according to the rules of law, and not by the custom of any association. R. R. Co. v. Fagan, 72 Tex. 127, 9 S.W. 749, 2 L.R.A. 75, 13 Am.St.Rep. 776; American Warehouse Co. v. Ray, 150 S.W. 763; Josey v. Beaumont Waterworks Co. 183 S.W. 26; Henry v. Green Insurance Co., 103 S.W. 836; Moore v. Kennedy, 81 Tex. 144, 16 S.W. 740; Barnard v. Kellogg, 10 Wall. 383, 19 L.Ed. 987; Grace v. American Insurance Co., 109 U.S. 278, 3 Sup.Ct. 207, 27 L.Ed. 932. It follows, therefore, that there were no such mutual debts or credits, or in the same right, shown by the answer which could be set off against the claim sued on by the trustee in bankruptcy, under section 68a and b of the Bankruptcy Act.
The assignment complaining of the court's action in overruling defendant's motion to strike out plaintiff's trial amendment presents no reversible error. It is within the discretion of the trial court to permit a trial amendment of the plaintiff's petition, whether exceptions to the original petition had been sustained or not (American Warehouse Co. v. Ray, 150 S.W. 763), and the mere failure to replead, if the case is not then tried, as directed by rule 27 for district and county courts (142 S.W. xix) should not work a reversal of the case. Appellant's third and sixth assignments of error are presented together, and charge that the verdict of the jury is contrary to and not supported by the evidence.
However, we do not think these irregularities ought to reverse the case. Mound Oil Co. v. Heitman, 148 S.W. 1187; American Warehouse Co. v. Ray, 150 S.W. 765. The sixth, seventh, and eighth assignments are based on the contention that there was such a fatal variance between the allegations and proof as to preclude a recovery.
It was within the discretion of the court to permit the filing of the trial amendment. Moore v. Moore, 73 Tex. 382, 11 S.W. 396; Railway Co. v. Huffman, 83 Tex. 286, 18 S.W. 741; Texas Co. v. Earles, 164 S.W. 28; American, etc. v. Ray, 150 S.W. 763. In any event, the filing of the same is not regarded as reversible error.
" Hobdy v. Siddens, 198 Ky. 195, 248 S.W. 505. See American Warehouse Co. v. Ray (Tex.), 150 S.W. 763; National Seed Co. v. Leavell, 202 Ky. 438, 259 S.W. 1035. We have been favored with an exhaustive brief by plaintiff's counsel, but we regard their citations as distinguishable, or as not in consonance with the reasoning of cases we prefer to follow.