Opinion
No. 443.
April 22, 1915. Rehearing Denied May 13, 1915.
Appeal from District Court, Harris County; John A. Read, Judge.
Action by the Southern Gas Gasoline Engine Company against E. W. Brown. From a judgment for plaintiff, defendant appeals. Affirmed.
Holland Holland, of Orange, and W. 0. Huggins, of Houston, for appellant N.C. Abbott, of Houston, for appellee.
Appellee sued Brown to recover the purchase price of gasoline engines and pumps sold and delivered by virtue of a written contract entered into between the parties in 1912. Judgment was rendered in appellee's favor. Recovery was denied of a balance alleged to be due upon purchase price of an engine and pump sold and delivered in the year 1911. What is said in disposing of appellant's assignments relates to the 1912 contract.
The contract in question was in the form of a written proposal, dated November 20, 1912, to sell and deliver the machinery in question upon terms therein specified, with reservation of title until purchase price had been paid. It was submitted by a salesman of appellee, and provided that it was to become effective when accepted by Brown and approved by the secretary of appellee. Brown's acceptance was dated November 30, 1912, and the approval of the secretary was dated December 19, 1912.
Upon trial a certified copy of this contract from the chattel mortgage records was offered in evidence, and error is assigned thereto. It is asserted that the copy was improperly admitted, because:
First. Secondary evidence of the contents of the contract was not admissible without accounting for the original copy.
Second. The date thereof varied from the date alleged.
Third. The document offered contained no description of the property alleged to have been purchased.
The bill of exception does not disclose that the objection first mentioned was urged when the copy was offered, and we are confined to the objections there made in determining whether the instrument was improperly admitted. It was not objected that a copy was offered instead of the original. The use of a certified copy was objected to simply because it has not been filed among the papers of the cause for one day before announcement and beginning of trial.
As to the second objection, the contract was alleged to be dated December 19, 1912, and from its terms it is apparent that it did not become operative and effective until its approval by the company's secretary. This approval was dated December 19, 1912, and there is therefore no variance. And in any event the variance did not operate to surprise, and would be regarded as immaterial. An inspection of the contract discloses that the third objection has no merit. As to these objections, it may be further said they are wholly without merit, for the additional reason that the contract described in the petition was admitted in defendant's answer.
Another objection is urged which is not embraced within the assignment, was not urged when the instrument was offered in evidence, and, in any event, is wholly lacking in intrinsic merit, for which reason it is overruled.
As we understand the propositions urged in support of the second assignment, they present no error, and are overruled.
The third assignment questions the sufficiency of the evidence to support the judgment. The assignment is not presented in such manner as to require consideration, but in any event it seems to be without merit.
The fourth assignment is overruled; the evidence showing that plaintiff accepted and approved on December 19, 1912, the written proposal of its salesman theretofore made.
The fifth and sixth assignments complain of the findings of fact filed by the lower court. The supporting statements do not substantiate the contention made, for which reason they are overruled.
By cross-assignment appellee complains of the refusal of the court to render judgment for the balance claimed upon the 1911 contract. The trial court found that there were defects and insufficiencies in the machinery and installation thereof which plaintiff had agreed to remedy, and by reason of its failure so to do the defendant had been damaged the amount of the balance due upon this contract. An inspection of the evidence discloses that this finding is supported thereby, for which reason the cross-assignment is overruled.
Affirmed.