Marsalis v. Thomas

The evidence indicates that appellee did not repudiate the contract until he had given appellant more time than was allowed in the contract, to comply with his promises. Appellee swore that he was not satisfied with the road, and told appellant so, and the latter then represented that he would use electricity which would overcome the difficulty experienced from the use of steam. Appellee waited and recognized the contract as still in effect until he found that appellant did not intend to comply with the contract. His recognition of the existence of the contract while giving appellant time in which to comply with the contract, cannot be distorted into a waiver of his rights or raise an estoppel against him asserting them. The first time that appellant asked for money after he had virtually admitted that he was not complying with the contract, but would do so by using electricity, it was refused him by appellee on the ground that appellant had breached the contract.

The matter of waiver was a question of fact, and was fairly submitted to the jury, and it was found against appellant. There is evidence to sustain the finding.

It is admitted by appellant that appellee had paid him $9100 on the contract, and it is not contended but that appellee had the right to recover this sum from appellant, if the latter had breached the contract. That being true, if the jury found in favor of appellant at all, they were justified in finding at least for the amount paid on the contract by appellee. They did not find in excess of that sum, and being justified in finding for that sum, it must follow that the testimony in regard to the damage to the land, if it was improperly admitted, did not affect their verdict. Appellate courts do not reverse judgments merely because illegal testimony may have been admitted in evidence, when there is nothing to indicate that it may have affected the verdict, and when it appears that there was sufficient legal evidence to support the verdict. Davis v. Loften, 6 Tex. 489; Herndon v. Casiano, 7 Tex. 322; Pridgen v. Hill, 12 Tex. 374 [12 Tex. 374].

There never was a refusal on the part of appellee to pay the installments as they became due, but he gave appellant full time, more than that specified in the contract, to complete the road and operate it as he had agreed to do; and when at last he saw that he would not complete the road, or operate it as he had promised, appellee refused to pay anything more on the contract, and has the right to recover the amounts he had already paid.

Appellant agreed in the lower court that appellee should recover for the right of way and for two acres of land that had been given as a payment of $2400 on the contract. Upon what ground, other than a breach of the contract by appellant, this recovery was agreed to, does not appear.

The fourth, fifth, sixth and seventh assignments of error say the court erred in giving certain charges, and then copy the clauses of the charge complained of, no effort being made to point out the errors. The statute provides that the assignments of error shall distinctly specify the grounds on which the appellant relies, and when this is not done, the error is to be considered waived by the appellate court. Article 1037, Sayles' Stats. Or, as it is put in article 1018, Rev. Stats. of 1895, "all errors not distinctly specified are waived." See also, Tudor v. Hodges, 71 Tex. 392; Pearson v. Flanagan,52 Tex. 266. Propositions will not be looked to assist assignments when too general. Cannon v. Cannon,66 Tex. 685; Jackson v. Cassidy, 68 Tex. 282 [68 Tex. 282]; Railway v. Hinzie, 82 Tex. 629.

All the law in the special charges 1 and 2 applicable to the facts were given by the court, and it was not error to refuse to give the special charges. The error complained of in the two assignments presenting error in failing to give special charges, is not pointed out. Shumard v. Johnson, 66 Tex. 73.

The thirteenth and fourteenth assignments of error are directed at the sufficiency of the evidence. We think it sufficient. Appellant never completed the road as he had contracted.

The motion for rehearing is overruled. Overruled.

Delivered May 20, 1896.

Writ of error refused.