Opinion
October 25, 1911.
Appeal from Hill County Court; Horton B. Porter, Judge.
Action by W. T. McGrew against J. M. Norris. Judgment for defendant on a counterclaim, and plaintiff appeals. Reversed and remanded.
Luther Nickels, for appellant.
Appellant, a dealer in lumber and hardware, having sold appellee on account certain lumber and builders' hardware, including paper roofing, upon part of which payment had been refused, brought this action to recover a balance of $84.90. Payment thereof was resisted by appellee, among other things, on the ground that said paper roofing was warranted by appellant to be waterproof, but the same was defective and would not turn water, whereby he had been damaged in the sum of $199, which he sought to recover by way of cross-action against appellant. Upon trial in the justice's court there was a judgment in favor of appellee on his cross-action in excess of plaintiff's demand for $115.04, from which judgment appellant appealed to the county court.
In the county court appellee amended, pleading a failure of consideration of said account by reason of the alleged worthlessness of said roofing, as well as for damages, asking judgment against appellant in the sum of $200. Appellant, answering this cross-action in the county court, averred that the same was untrue, that no warranty was made by him of said roofing, but, if it should be held that such warranty was made, then there had been no breach thereof by appellant, but that the defects in appellee's roof, if any, and the damages arising therefrom, were caused by his failure to put the same on in accordance with directions and specifications furnished by appellant and the manufacturers of said roofing to appellee, which directions and specifications and an adherence thereto were a part of the contract of warranty, if any. Appellant likewise alleged that 45 squares of the roofing in question were not in fact sold to appellee, but to a third party, for whom appellee was agent, and were not used by him, but were used by said third party, and therefore the damages arising therefrom, if any, belonged to said third party, and not to appellee. Upon trial in the county court, the following verdict was rendered: "We the jury find against plaintiff for defendant on his counterclaim the sum of $100." Whereupon judgment was rendered in favor of appellee against appellant for said amount, from which this appeal is prosecuted.
There was a motion for new trial, to which was appended the affidavit of each of the jurors trying said cause, to the effect that the verdict so rendered was not their verdict, and that the same did not express their true intention, but that they really found and agreed to a verdict to the effect that appellant should have a judgment against appellee for the full amount of his claim with interest, and that appellee should have judgment over against the appellant for the sum of $100 upon his counterclaim, and that these amounts should be set off against each other. This motion was overruled by the court, and the appellant has brought the case up for review.
It is urged, first, that the court erred in not setting aside the verdict and judgment rendered in this cause, because said verdict was not the true verdict arrived at by said jurors, as shown by their affidavits. The second assignment challenges the correctness of the judgment of the court on the ground that the verdict rendered by the jury does not support a final judgment, for the reason that the same did not dispose of all the issues presented by the pleadings.
The first assignment is not well taken for the reason that the verdict upon its face is sufficient within itself, and the court would have no right, after the discharge of the jury, to consider or hear any affidavit made by them in any way impeaching the verdict. A jury cannot be recalled and allowed to change the substance of their verdict after they have been discharged. Salinas v. Stillman, 25 Tex. 18; also, Denison P. S. Ry. Co. v. Giersa et al., 50 S.W. 1039, where the doctrine announced in the first case was cited and approved.
But the second assignment is well taken. It has been uniformly held in this state that no final judgment can be rendered upon a verdict which does not dispose of all the issues raised by the pleadings and sustained by the evidence. In the present case, notwithstanding the record shows that there was evidence offered, both by the plaintiff and the defendant, sustaining the issues presented in their respective pleadings, still the verdict only disposed of the issue raised by the cross-action, being silent as to the issue raised by the plaintiff. This being true, it was error to have rendered judgment upon the verdict. In G., C. S. F. Ry. Co. v. Stephenson et al., 26 S.W. 236, a judgment in behalf of the plaintiff, but which failed to dispose of affirmative matters set up by the defendant in his cross-bill, was held bad, for the reason that it failed to dispose of all the issues presented by the record; Chief Justice Fisher saying, among other things, that: "The rule is well settled in this state that in order for the judgment to be final, it must dispose of the issues presented. The judgment of the justice court did not dispose of the issue raised by the plea in reconvention or cross-bill, nor was this issue acted upon in any way by that court. This was essential to be done in order that the judgment rendered by the justice may be final." The principle above announced is clearly applicable to the point here presented. See, also, Harper v. Dawson, 140 S.W. 385, opinion rendered by this court October 18, 1911, not yet officially published; Sapp v. Anderson, 135 S.W. 1068; Riddle v. Bearden, 36 Tex. Civ. App. 97, 80 S.W. 1061; Linn v. Arambould, 55 Tex. 611. See, also, article 1333, Rev.Civ.St. as amended by Laws 1899, p. 190; also, article 1335, Id.
The third assignment assails the judgment on the ground that the evidence disclosed that a third party, to wit, one Hammer, and not the defendant, was and is the true legal owner of a major portion of the cause of action set out in appellee's cross-bill, and that the defendant's interest therein, if any, was and is therefore much less than the judgment rendered for him. It will be recalled that plaintiff in his pleadings alleged that 45 squares of the roofing delivered by him to appellee was not in fact sold to him, but to one Hammer, for whom appellee was agent, and that said roofing was used by said Hammer and not by appellee. The evidence sustains this allegation, and showed, in addition, that Hammer had paid for this roofing and had used the same upon his own buildings; for which reason appellee was not entitled to recover, even though the same was shown to be defective and Hammer had been damaged by reason thereof, for the reason that the cause of action did not belong to him but to Hammer, and could not be asserted by him against plaintiff. See Tinsley v. Dowell, 87 Tex. 27, 26 S.W. 946; Le Master v. Dalhart Real Estate Agency, 121 S.W. 185. See, also, Mechem on Agency, § 753; Storey on Agency, § 391; Railway Co. v. Stockton, 15 Tex. Civ. App. 145, 38 S.W. 647; May v. Slade, 24 Tex. 206. Wherefore we sustain this assignment.
For the same reason we sustain the fourth assignment, which urges that the court erred in refusing to submit a special charge asked by the appellant to the effect that, if the jury believed from the evidence that in receiving and paying for the 45 squares of roofing which were placed upon the building owned by Hammer, appellee, Norris, was acting for said Hammer as agent, "you are instructed that in that event you cannot consider the purchase price of said 45 squares of roofing in making your verdict." This charge, we think, was the law of this feature of the case as made by the pleadings and the evidence, and should have been given.
The fifth assignment complains of the admission of evidence relative to the condition of the roofing placed upon the Hammer building. This assignment cannot be considered for the reason that the bill of exceptions upon which the objection is based has not the approval of the court. This evidence, we might add, was probably admissible bearing upon the issue as to the defective quality of the roofing sold to appellee for his own building, but for no other purpose.
On the trial appellant offered the printed instructions furnished by him to appellee, directing how to put on the roofing. This was excluded by the court; but, since the bill of exceptions upon which this ruling is predicated is not approved by the trial court, the point raised cannot be considered.
We likewise disregard the seventh assignment for the same reason.
For the errors indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.