Lester v. Logan , 38 Tex. Sup. Ct. J. 554 ( 1995 )

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907 S.W.2d 452 (1995)
Tom E. LESTER, Petitioner,
v.
Raymond "Butch" LOGAN, Respondent.
No. 95-0225.
Supreme Court of Texas.
April 27, 1995.
Steven R. Brown, San Marcos, for petitioner.

Houston Munson, III, Gonzalez, for respondent.

PER CURIAM DENIAL OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Tom Lester sold Butch Logan several bales of hay which he grew on his property in Gonzales County. After eating the hay, several of Logan's cattle died and several more cattle miscarried. A veterinarian determined that the livestock suffered from nitrate poisoning caused by the hay. Logan sued for the damages to his cattle. Based *453 upon the jury verdict, the trial court rendered judgment that the implied warranty of fitness for a particular purpose had been breached. The court of appeals affirmed. 893 S.W.2d 570.

The court of appeals held that Lester improperly submitted his requested jury questions and instructions. On a single page, Lester submitted a question on the implied warranty of fitness for a particular purpose, definitions for the terms "implied warranty of fitness for a particular purpose" and "producing cause" and instructions on "course of dealing" and "usage of trade." The group of requests was refused by the trial court.

The court of appeals observed that the trial court was not required to go through the submitted group of requests and submit the proper requests to the jury while refusing the improper requests. The court of appeals emphasized that Lester did not request and tender a substantially correct instruction to the trial court in writing and indicated that Lester therefore had waived any complaint regarding the instructions on appeal. In denying the application for writ of error, a majority of the court disapproves of the analysis of the court of appeals concerning this issue. See, State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). The application for writ of error is denied.