Texas Grain & Elevator Co. v. Dyer

BUCK, J. Suit was filed in the justice court of Erath county by H. L. Dyer against the Texas Grain & Elevator Company of Ft. Worth, alleged to be a corporation, and, in the alternative, against E. M. and G. H. Rogers, alleged to be a partnership and doing business under the name of said Grain & Elevator Company. The plaintiff alleged the cause of action to be by reason of the breach of two contracts in writing entered into by and between plaintiff and defendants, (1) for the delivery at Mangum, Tex., on October 1, 1914, of 50 tons of Johnson grass hay, and (2) for the delivery at Dublin, Tex., on November 3, 1914, of 30 tons of hay, all at $8 a ton, said hay to be shipped in accordance with instructions from defendants. That plaintiff was at all times ready and willing to deliver said hay, and so advised defendants, but that defendants failed and refused to give any instructions for shipping, or to receive or pay for said hay. That because of said breach by defendants, and by reason of the decline of the market price of hay, plaintiff was forced to sell said 80 tons of hay on November 12,1914, at $6 a ton. Plaintiff’s suit for damages included $2 a ton loss, or $160, $10 for storage, and $10 attorney’s fees. Defendants, both in the justice court and in the county court, to which an appeal was taken by them, after alleging that the Texas Grain & Elevator Company was not a corporation, but a partnership, composed of said E. M. and G. H. Rogers, submitted their verified plea of privilege to be sued in Tar-rant county where it was alleged both resided. In answer to the plea of privilege, plain [1050] tiff pleaded, (1) that the contract was in writing and to be performed in Erath county, and (2) that the defendants were guilty of fraud and deceit, committed in Erath county, in that they never intended, even at the time of making the contract, to comply therewith and pay for said hay, in case the market-should decline. This latter ground only of said plea was submitted to the jury, which found in favor of plaintiff “on the issue of defendant’s right to be sued in Tarrant county” ; and the jury also found, under peremptory instructions, subject to the plea of privilege, for plaintiff, on the issue of damages, for $160. Defendants appeal. [1] Appellee objects to the consideration of any one of the 17 assignments contained in appellants’ brief because they are not briefed as required by the rules, in that in the statements thereunder no reference is made to the portion of the transcript containing the record of the alleged error of which complaint is made. Eor instance, in their first assignment, complaining of the action of the court in overruling defendants’ application for a change of venue, and their plea of privilege to be sued in Tarrant county, appellee calls our attention to the fact that “neither the assignment nor the statement refers to that part of the record containing such plea, if there was any, or to the court’s judgment thereon, if there was a judgment against the plea.” In the second assignment, urging that the verdict of the jury is contrary to the evidence on the issue of fraud, which is one of the grounds pleaded by plaintiff to sustain the venue in Erath county, there is no reference to that portion of the motion for new trial complaining of the alleged error. We believe that the objections by appellee to the consideration of the assignments in this form and condition should be sustained. Farthing Lumber Co. v. Illig, 179 S. W. 1092; Norris Lumber Co. v. Harris, 177 S. W. 515; Anderson et al. v. Jackson, 168 S. W. 54; Taylor v. Butler, 168 S. W. 1004; Heath v. Huffhines, 168 S. W. 974; Ford Motor Co. v. Freeman, 168 S. W. 80. There being no fundamental error manifest of record, the judgment of the trial court is affirmed. Footnotes [1] <£==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes