Minnick v. Dreyer Motor Co.

WILLSON, C. J. (after stating the facts as above). [1, 2] It would serve no useful purpose to determine whether the trial court erred or not when he sustained special exceptions to appellant’s petition so far as it was for conversion of an automobile; for if he erred, in view of all the testimony, and particularly that of appellant in his own behalf, and of Rule 62a for the government *367 of Courts of Civil Appeals (149 S. W. x), the judgment should not therefore be reversed. There was no testimony whatever that a particular car among those belonging to ap-pellee was ever designated or in any way identified as one appellee had sold to appellant. On the contrary, the testimony of appellant as a witness in his own behalf, as well as other testimony heard by the court, clearly indicated that no particular one of said cars was ever so designated or otherwise identified. Therefore it may be said to have appeared not only without dispute, but conclusively, so far as he was concerned, from appellant’s own testimony as a witness, that his contract for the purchase of a car was executory and that he never was the owner of a car by force thereof. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Parlin & Orendorff Co. v. Kittrell, 95 S. W. 703; 24 R. C. L. 18. It would seem to follow necessarily that appellant was never entitled to maintain his suit for conversion, and that the ruling of the trial court therefore, if erroneous, was harmless. Hence the first assignment is overruled, as are the third and fourth for the same reason. [3] If it did not appear from a clear preponderance of the evidence that appellant never by the terms of the contract became entitled to demand that appellee deliver a car to him before February 4, 1920, as was found by the trial court, then certainly it must be said the testimony was conflicting as to whether he had such a right before that time or not. In that event it was the province of the trial court, and not this court, to determine the question. Therefore we overrule the seventh assignment. [4] In his eleventh assignment appellant complains because the court, after awarding him a recovery of $25 against appellee, adjudged that he pay the costs he had incurred in his suit. As we view the record the error committed by the trial court was not in so adjudging costs, but in awarding appellant a recovery of any sum and in failing to adjudge that he pay all the costs of the suit. Appellee complains of this in its brief, but as it did not appeal this court is without power to disturb the judgment against it. Other assignments not in effect disposed of by what has been said are overruled, and the judgment is- affirmed. Footnotes [1] @m>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes