Farmers' Club Co. v. Emmerson Mercantile Co.

Hart, J. (after stating the facts). It is earnestly insisted by counsel for appellant that the evidence is not legally sufficient to sustain the verdict. At the request of appellant, the court instructed the jury that if it believed from the evidence that the contract was that the engine should be in first-class condition except the missing parts, and that the evidence showed it was not in first-class condition, appellant would have a right not to accept it, and might recover the amount it had paid *m the purchase price together with the freight. On the part of appellees the jury was instructed, that if it believed from the evidence that the contract was, that appellees would furnish whatever parts that were missing, and which were necessary to put the engine in first-class condition, and that appellees stood ready to carry out the contract on their part, and appellant refused to allow them to do so, then the verdict should be for appellees on their counterclaim for the sum of $1,000 due on the purchase price. The court further instructed the jury that, if it believed from the evidence that the engine was in such defective condition that it could not have been put in first-class condition, then appellant would have the right to reject the same without waiting for appellees to repair it, and appellant was entitled to recover. No exceptions were saved to the giving of these instructions, and they substantially submitted to the jury the respective theories of the parties to this lawsuit. We cannot agree with counsel for appellant in their contention that there was no legal evidence to support the verdict. One of the witnesses for appellees testified that if they had been allowed to put in the repairs that they ordered, on the engine, it would have been in good condition and would have lasted appellant a good long time. He said that the engine was not burned out on the inside, and that the cylinders did not need reboring. He was sent up there to repair the engine and was prevented from repairing it by appellant. He had had ten years ’ experience in installing machinery of this kind and seeing that it operated in a satisfactory manner. Wingfield, the manager of appellees, also testified that the engine was in good condition and ready for operation when the missing parts were attached to it; that he ordered the missing parts to be shipped to appellant at its place of business, and sent an experienced machinist up there to attach the parts to the engine. It is true that the evidence for appellant showed that the engine was in very bad condition, and could not have been put in condition for use except temporarily. The jury, however, were the judges of the credibility of the witnesses, and under the settled rules of this court we cannot review its finding where there is any evidence of a substantial character to support it. In other words, the question of the preponderance of the evidence is a matter for the jury trying the case, and we have no concern with it on appeal. It is our duty to uphold the verdict where there is legal evidence to support it, and the evidence for appellees, if believed by the jury, entitled them to recover the balance of the purchase price on the engine. Counsel for appellant also assign as error the refusal of the court to instruct the jury that if it found that appellees, or their agent, notified appellant that the machinery could not be put in first-class condition, appellant had a right to reject the same, and the jury should find for appellant. This instruction was predicated upon an affidavit made by F. B. Cooper, the agent of the International Harvester Company, who was sent by that company at the request of appellees to attach the missing parts to the engine. At the request of appellant he made an ex parte affidavit to the effect that the engine could not be put in first-class condition. He was not the agent of appellees for any purpose except to install the engine. Hence he could not bind appellees by an ex parte affidavit as to the condition of the engine. Cooper testified as a witness in the case, and it was proper to introduce the affidavit for the purpose of contradicting his testimony given at the trial and thereby attacking his credibility as a witness. It is also insisted by counsel for appellant that the court erred in refusing to instruct the jury that, if it found that the repair of the engine was not made within a reasonable time after the agreement to repair it, it should find for the appellant. There was no error in refusing <to give this instruotion. Appellees ordered the missing parts for the engine from the International Harvester Company and got that company to send an experienced man to attach the parts to the engine. This was done within a short time after the engine was sold to appellant. Appellant refused to receive the parts or to permit Cooper to attach them to the engine, on the ground that the engine was in such defective condition that it could not be placed in first-class condition for that season’s ginning. There was no issue on the failure of appellees in making repairs on the engine within a reasonable time, and on this account the court did not err in refusing this instruction. The respective theories of appellant and appellees were submitted to the jury in instructions to which no objections were made or exceptions saved, and, there being evidence to support the verdict, the judgment must be affirmed.