Peck v. Morgan , 1913 Tex. App. LEXIS 14 ( 1913 )

FLY, C. J.

W. M. Morgan sued F. M. Peck and J. A. Peck for a balance on a promissory note executed by them to him for $3,000, and the foreclosure of a chattel mortgage on certain furniture. Stowers Furniture Company intervened in the suit, claiming to have a mortgage on the furniture to secure a part of the purchase price of the furniture due to them by Morgan. J. A. Peck did not answer, but F. M. Peck answered by pleas of coverture and the breach of certain warranties made by Morgan as to the cost of the furniture. The court submitted the cause on special issues, hut paid hut little regard to the answers of the jury in rendering judgment in favor of Morgan against F. M. Peck for $2,522.47, and a foreclosure, and against Morgan in favor of Stowers Furniture Company for $1,396.50. The cause was dismissed as to J. A. Peck, and this appeal is perfected by F. M. Peek alone. The evidence shows that appellant bought the goods, after examining them, and agreed to pay for them the amount claimed by Morgan.

[1-3] The first assignment of error is as follows: “The court erred in rendering a judgment non obstante veredicto, after submitting the matter to the jury and receiving a verdict thereon.” The assignment is not followed by a statement that casts any light on the matter complained of. What were the two special issues spoken of in the purported statement, and what were the answers to them? There is nothing in the statement that shows. Reference to the transcript is not sufficient, as has been held many times. The second, third, fourth, and fifth assignments of error are open to the same criticism ; in fact, they refer to the first assignment for a statement. Neither of the assignments of error refers to the motion for new trial, a clear violation of rules 24 and 25 of the Courts of Civil Appeals (142 S. W. xii). The failure to make a succinct and clear statement considering the matter referred to, taken with the failure to refer to the portion of the motion for new trial in which the error is complained of, is such a serious violation of the rules that the assignments of error will not be considered. It may be said in connection with them, however, that the evidence of appellant offered no defense to the action of Morgan. There was no warranty of the furniture, and the representation, if made, that the furniture had cost a certain sum, although untrue, would not be sufficient to set aside the sale. Appellant could have ascertained the facts as to the cost of the furniture by a little diligence. She stated that she knew the value of furniture, and she did not swear that the furniture was not worth what she paid for it. She made no objection to the furniture nor objected to paying for it over a year after she began using it. There was no representation as to value, but merely, according to appellant, as to what the furniture cost Morgan. Bigelow on Fraud, p. 490 et seq. Mrs. Peck saw and examined the property, or could have examined it, before she bought it, and she should not have relied on Morgan’s representation as to what the original cost of the property may have been. Chrysler v. Canaday, 90 N. Y. 272, 43 Am. Rep. 166.

[4, 5] The sixth, seventh, eighth, and ninth assignments of error complain that the note sued on was not introduced in evidence, and therefore there was nothing upon which to base the judgment. Appellant in her answer admitted the sale of the property to her and the purchase price, that $2,000 in cash was paid, and “the execution by defendants of one certain promissory note as described in plaintiff’s petition.” The note is fully described in the petition. The evidence clearly showed the payments made on the note, and Morgan swore that he was the owner of the note. The note is fully described in a bill of sale to the property made by Morgan to F. M. Peck. There was no issue as to the existence of the note, and no objection was made to the evidence tending to show the contents of the note. Brown v. Lessing, 70 Tex. 544, 7 S. W. 783; Howard v. Britton, 71 Tex. 286, 9 S. W. 73; Mensing v. Cardwell, 33 Tex. Civ. App. 16, 75 S. W. 347; Long v. Garnett, 59 Tex. 229. Appellant did not deny that Morgan was the legal owner and holder of the note, and swore that he was the owner. The petition alleged that the note bore 8 per cent, interest and 10 per cent, attorney’s fees, and appellant in her answer admitted it. Appellant did not in the motion for new trial attempt to raise any issue as to the attorney’s fees, except that the note was not introduced in evidence, and no other objection can be heard in this court.

[6] Appellant, having breached the contract, is in no position to complain of a breach by appellee, Morgan. Appellant did not cease paying on account of the failure of Morgan to pay over the money to interven-ers. She knew nothing about such failure, and swore that she breached the contract because she ascertained that Morgan charged her more for the furniture than it cost him. She will not be permitted to shift her position after a breach of the contract.

[7] Appellant cannot evade her responsibility on the contract on the ground of coverture. She was not living with her husband at the time she bought the furniture, and two months afterwards obtained a divorce from him, and the property in question was declared to be her separate property. She had left her husband in February, 1910, and had for nine years been in business for herself, and conducted the business with her own money. Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763. She bought the furniture with her separate property, and after she was divorced she continued to make payments on the furniture. Finks v. Thompson, 11 Tex. Civ. App. 538, 32 S. W. 711. She and her erstwhile husband had permanently separated at the time of the purchase of the property, and she ratified the purchase by her acts after she became a feme sole, and she still occupied that, status, when the judgment was rendered against her.

[8, 9] The twelfth assignment of error is overruled. -In the proposition thereunder remarks made by the judge seem to be the subject of complaint, but no indication is given as to what the remarks were. The same is true of the thirteenth and fourteenth assignments of error; the statements under them failing to show what was contained in the statement of facts and decree of which complaint is made. We are unable to ascertain whether the evidence could have injured appellants. If reference is made to the decree of divorce, it was properly admitted to show that appellant was a feme sole, and had ratified the contract made while she was a feme covert.

The fifteenth assignment of error is not followed by such a statement as would indicate any error in the refusal of the court to allow appellant ‘ to prepare an application for continuance after they had announced ready for trial.

[10] The refusal to submit the issue requested by appellant was not error. The same issue was fully submitted by the. court, and there was no necessity for repeating it.

[11] Assignments of error from the seventeenth to the forty-sixth, inclusive, are not followed by statements, and are overruled.

The judgment is affirmed.