Opinion
No. 3699.
May 23, 1929. Rehearing Denied June 6, 1929.
Appeal from District Court, Fannin County; George P. Blackburn, Judge.
Suit by F. L. Stevens against J. R. Wilson and others. From a judgment for defendants, plaintiff appeals. Affirmed.
In 1926 appellees J. R. Wilson, Pat Wilson, and C. A. Armstrong were partners, and in their firm name of "J. R. Wilson Co." were engaged in business as house furnishers and undertakers. They had stores at Leonard, Wolf City, and Blue Ridge, in each of which they carried "a general line of furnishings for homes, from cook-stoves up to household furniture." In August of said year R. G. Lamm, as appellees' employé, had been in charge of their store at Blue Ridge about seven years. On the 9th day of said month Lamm, claiming a right to act for the firm in doing so, in its name entered into a contract with the Brenard Manufacturing Company, acting by its agent, one T. U. Knox, whereby the latter agreed to sell and deliver, and the former agreed to purchase and pay $480 for, certain radio receiving sets. At the time the contract was executed said firm, acting by said Lamm, executed and delivered to said Knox for said manufacturing company six promissory notes, for sums aggregating said $480; five of the number being for $85, and the other one for $55. The notes were signed "J. R. Wilson Co. by R. G. Lamm," and were payable to said manufacturing company's order in 3, 4, 5, 6, 7, and 8 months from their date, to wit, said August 9, 1926. Each of the notes contained a stipulation as follows: "In case of default in payment I agree to pay payee's reasonable attorney fees." The manufacturing company, by indorsing the notes, transferred them to appellant F. L. Stevens, who by this suit sought a recovery of the amount thereof (including $160 as an attorney's fee) of appellees. In a part of their answer sworn to by one of their attorneys, appellees denied that the notes sued on were executed by them or either of them, or "under the authority of any of them." In a supplemental petition appellant set out at length conduct on the part of Lamm acting for appellees which, he charged, estopped them from asserting the fact if Lamm was without authority to act for them in making the notes. At the conclusion of the hearing of the evidence adduced by the parties, appellant requested the court to instruct the jury to return a verdict in its favor for $528, "the same being," it was recited in the requested instruction, which was in writing, "the amount of the principal and attorney's fees on the notes sued on herein." The court refused the request and submitted to the jury an issue in language as follows: "Say whether or not the witness Lamm had authority from defendants to make the contract which has been testified about." The jury answered, "No." The court rendered judgment denying appellant a recovery of anything and in appellees' favor for costs. Thereupon appellant prosecuted this appeal.
C. Huggins, of Sherman, for appellant.
Cunningham Lipscomb, of Bonham, for appellees.
Appellant insists it conclusively appeared from the evidence that Lamm was authorized to act for appellees in making the notes sued upon, and that the trial court therefore erred when he refused to instruct the jury to return a verdict in his (appellant's) favor and submitted to the jury an issue as to whether Lamm had such authority or not. It appeared that in their business as house furnishers and undertakers appellees dealt in "furniture, caskets, paint, oil heaters, cook-stoves and the like." They had never dealt in radio sets. There was evidence that Lamm had charge of appellees' store at Blue Ridge and was authorized to buy what witnesses described as "fill in stuff" and "replacements of depleted stock." There was evidence that he was without authority to buy radio sets or other articles appellees "had not been handling before." There was evidence that radio sets were "somewhat of a kindred line to the furniture business" and "found a natural sale in such stores," and further that it was "a general trade custom in the Blue Ridge section for furniture stores to handle radios"; but there was also evidence to the contrary. There being evidence as stated, it is plain, we think, it did not conclusively appear that Lamm had authority, either express or implied, to act for appellees in buying the radio sets and in making the notes sued upon. 2 C.J. 576 et seq.
Whether the evidence warranted a finding that appellees held Lamm out as having the authority he undertook to exercise and therefore were estopped from denying he possessed such authority (2 C.J. 570 et seq.) will not be determined, for appellant did not request the court to submit, and the court did not submit, such an issue to the Jury. That being true, appellant is in the attitude of having waived the right he may have had to insist that appellees were estopped from denying authority in Lamm to make the notes. Article 2190, R.S. 1925; Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.2d 1084; Alexander v. Tile Co. (Tex.Civ.App.) 4 S.W.2d 236; Elmendorf v. City of San Antonio (Tex.Civ.App.) 223 S.W. 631; Sewell v. Mill Co. (Tex.Civ.App.) 253 S.W. 892; Newberry v. Johnson (Tex.Civ.App.) 274 S.W. 667.
It is insisted it was error to submit the question the court did submit "without (quoting) properly informing the jury, for their guidance, as to the law by which the defendants are bound under the developed facts of the case." If the action of the court was erroneous as claimed, appellant has no right to complain of it here, for he did not request the court to further instruct the jury. Article 2186, R.S. 1925; Thompson v. Van Natta (Tex.Civ.App.) 277 S.W. 711; Ritz v. Bank (Tex.Civ.App.) 234 S.W. 425; Green v. Hoppe (Tex.Civ.App.) 175 S.W. 1117; Scarbrough v. Wheeler (Tex.Civ.App.) 172 S.W. 196; Bryning v. Ry. Co. (Tex.Civ.App.) 167 S.W. 826.
The judgment should not be reversed for the error of the court, if it was error, in excluding testimony of the witnesses Tatum and others that "phonographs and radios (quoting) are somewhat of a kindred line to the furniture business and find a natural sale in such (furniture) stores," and that it was "a general trade custom in this (the Blue Ridge) section for furniture stores to handle radios." The excluded testimony was merely cumulative of the testimony of the witnesses Knight and Todd. Rule 62a for the government of Courts of Civil Appeals; Nesbit v. Richardson (Tex.Civ.App.) 229 S.W. 595; Davey v. Coleman (Tex.Civ.App.) 6 S.W.2d 227.
Error requiring a reversal of the judgment not having been shown, it is affirmed.