Reo Motorcar Co. v. Barnes

WILLSON, C. J. (after stating the facts as above). The car company claimed that it commenced and prosecuted another suit against Barnes whereby it sought and obtained a judgment against him in a district court of Dallas county for the amount of the promissory notes aggregating $660, referred to in the statement above, and foreclosing, the lien of a mortgage to secure said notes given by Barnes on the automobile it sold him April 26, 1924, as mentioned in said statement. At the trial the ear company offered to prove its claim by a certified copy (1) of its original petition in said suit; (2) of Barnes’ answer to said petition; and (3) of the judgment in its favor rendered January. 12, 1925. On Barnes’ objection thereto on the ground that it was immaterial and irrelevant the court excluded the proffered evidence. Appellant insists, and we agree, that the action of the court as stated was error entitling it to a reversal of the judgment. Barnes’ contention in the instant case was that he and the car company had entered into an agreement whereby the car company was to sell and deliver him the automobile now in controversy, and he was to return the automobile the car company sold him April 26. 1924, pay the car company $215, the difference between the prices of the two machines, and execute and deliver to the car company! in lieu of the promissory notes for sums aggregating $660 above referred to, other notes for like amounts, together with a mortgage securing same on the automobile in controversy. We think the excluded testimony would have tended to disprove Barnes’ eon424 tention and. to uphold the contention of the car company that the contract covering the sale of an automobile it made to Barnes April 26, 1924, hereinbefore referred to, was the only completed contract ever entered into between it and Barnes; for the fact, as determined by the judgment in the foreclosure suit, that the promissory notes there sued upon and the mortgage made to secure same were valid and subsisting was not consistent with the claim of Barnes in his cross-action in the instant suit that the contract evidencing said notes and mortgage had been superseded by the contract he relied upon. 2 Abbott’s Trial Brief, 1308, and authorities there cited; Mack v. Cole’s Estate, 130 Mich. 84, 89 N. W. 564; Colquhoun v. Eursman, 32 Cal. App. 767, 164 P. 10; Hanrick v. Gurley, 93 Tex. 459, 480, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330. Of the twenty-odd assignments in the car company’s brief presenting other contentions than the one discussed above, those numbered “14,” “21,” “23,” and “17,” so far as it was that the trial court erred in the part of his charge in which he undertook to instruct the jury as to what constituted “a sale of personal property,” are sustained, in view of another trial, and those numbered “25,” “26,” “27,” and “28” are overruled because without merit. Those remaining have not been considered, because the requirements of the statutes and rules applicable (articles 1844 and 2237, Rev. Stats. 1925, and rule 31 for Courts of Civil Appeals), were not eomjplied with in briefing them. For the error of the court in excluding as evidence the copies of the car company’s petition, Barnes’ answer, and the judgment in the foreclosure suit hereinbefore referred to, the judgment in the instant case is reversed and the cause is remanded to the court below for a new trial.