Springman v. Heidbrink , 1922 Tex. App. LEXIS 1004 ( 1922 )

Appellee, B. Heidbrink, brought this suit against appellant, George Springman, to recover stipulated damages for breach of a contract for the delivery of lumber.

The petition declares upon the contract, which shows that the time for the delivery of the lumber was October 1, 1919, a copy of which is attached to the petition as an exhibit. It is then alleged, in substance, that in order to secure his compliance with said contract, appellant executed his promissory note in favor of appellee for $750, and deposited it with the Royal National Bank of Palestine, with the understanding and agreement by and between appellant and appellee and the bank that in event appellant failed to comply with his contract for the delivery of the lumber the bank should deliver the note to appellee, but in case the lumber was delivered in accordance with the contract the note should be returned to appellant; that appellant had failed to deliver the lumber, and that appellee was entitled to said note, which was still in the possession of the bank, and to recover the sum due thereon according to its terms and effect, for which judgment is prayed against appellant.

The defendant answered by general demurrer and general denial, and specially pleaded that he had not breached the contract for the delivery of the lumber, as alleged by the plaintiff, but that he had been at all times and was still ready and willing to comply with his contract. He further pleaded an agreement by the plaintiff to extend the time for the delivery of the lumber, and that his failure to make delivery was not due to any fault on his part, but was brought about by the wrongful acts of the plaintiff.

By supplemental petition the plaintiff made the Royal National Bank a party defendant, and prayed judgment against the bank for the note in question. The bank answered disclaiming any interest in the note, and averred that it held the note as a stakeholder only, and tendered the note to the court for its disposition.

The case was tried before a jury, to whom was submitted, by agreement of both parties, one question only, to wit: "Was the contract entered into between B. Heidbrink and George Springman extended beyond October 1, 1919?" To this question the jury answered, "No."

Upon the answer of the bank judgment was rendered in its behalf, and upon the verdict of the jury judgment was rendered in favor of E. Heidbrink against George Springman for $750 principal, $130.83 interest due on the note sued upon, and for $80.80 attorney's fees. From the judgment so entered Springman has appealed.

The first and second assignments of error presented in the brief of appellant are overruled for the following reasons: On cross-examination of the plaintiff counsel for defendant asked him the following questions:

"(1) Where were you going to build these houses, Mr. Heidbrink?

"(2) Mr. Heidbrink, I will ask you if you made the statement that you did not want the lumber, but wanted the amount of the note?"

Upon objection of counsel for the plaintiff that the evidence called for by the questions was wholly immaterial, the court refused to permit the witness to answer. Neither of the two bills of exceptions reserved to the ruling of the court above mentioned, upon which the above-mentioned assignments are based, state what answers were expected of the witness, or the materiality of the expected answers to the issues involved. It is therefore evident that neither of the bills present error of which appellant can complain. So far as this court is informed, the inquiries sought information which was wholly immaterial and irrelevant to any issue in the case, and certainly the court is unable to say that the exclusion of the answers of the witness, the nature of which are undisclosed, was harmful to appellant.

By the third and fourth assignments it is insisted that the court committed reversible error in this: While appellee Heidbrink was testifying in his own behalf, he was asked on cross-examination by counsel for appellant a certain question. The trial court sustained the objection to the question asked and in doing so stated that he sustained the objection because the contract had never been fulfilled. After the court had made the statement above mentioned, counsel for the plaintiff, thinking the court had erred in making the same, requested the court to instruct the jury not to consider such statement. Upon such request being made, the court instructed the jury not to consider such statement, and in the presence and hearing of the jury stated to counsel in the case that in making such statement he was merely expressing his own opinion about the matter.

These assignments, presenting practically but one question, are sustained.

The only issue between the parties was, Had the contract been extended by the plaintiff beyond the 1st of October, 1919? If it had, the defendant had not breached the same, but if it had not, he had failed to fulfill his part of the same.

The plaintiff by his pleading and testimony was contending that the contract was breached by the defendant, in that he had failed to make delivery of the lumber by the 1st of October, 1919, and the defendant by his answer and his testimony and evidence was contending that plaintiff had extended the contract, and that before the expiration of such extension he, defendant, had tendered performance, and that plaintiff had refused to carry out his part thereof, but insisted upon the payment of the note by defendant.

The issue thus made was sharply drawn by the evidence. It is shown that while the plaintiff was testifying he was asked by counsel for defendant on cross-examination if he had not (at some time) stated that he did not want the lumber, but wanted the amount due upon the note; that upon objection urged by plaintiff that the answer to such question would be immaterial to the issue involved, the court stated that he would sustain the objection upon the grounds that the contract had not been fulfilled, evidently meaning that defendant had failed to perform his contract and had breached the same. The effect of the remark of the trial judge in withdrawing his statement above mentioned from the consideration of the jury, we think, was to aggravate rather than to remove the effect of the statement first made. That the statement made by the court in making his ruling was error was recognized by both counsel for the plaintiff and by the trial judge.

By article 1971, Vernon's Sayles' Civil Statutes 1914, it is provided that the trial judge must not comment on the weight of the evidence. It has been uniformly held by all of our appellate courts that remarks of the judge commenting on the weight of the evidence is ground for reversal, where such comment would probably influence the jury in rendering its verdict. American Express Co. v. Chandler, 215 S.W. 364; Thomson v. Kelley (Tex. Civ. App.) 97 S.W. 326; Texas Louisiana Lumber Co. v. Rose (Tex. Civ. App.) 103 S.W. 444.

As said in the case of Lightburne Co. v. Bank (Tex. Civ. App.)232 S.W. 343:

"The trial court cannot fail to observe how closely the jury follows any observation the court may make in regard to the testimony or conduct of counsel that may tend to influence them to the one side or the other."

It is well understood, we think, by all persons of ordinary intelligence that an expression of the trial judge as to his opinion as to the existence or nonexistence of a fact issue has great weight with the jury.

In Thomson v. Kelley, supra, it is said:

"Under our system of jurisprudence, the jury are the exclusive judges of the weight of the evidence in all cases submitted to them, and the litigant whose case is tried by a jury is entitled to have the evidence submitted to them without any intimation from the judge of what his opinion is upon its weight, and when this right is invaded, either by the charge of the court, or by remarks made by the judge in the hearing of the jury, the litigant has just ground of complaint."

As we have reached the conclusion that the remarks of the court complained of constitute prejudicial error, we reverse the judgment and remand the cause.

Reversed and remanded.