BARCUS, J.
Appellee brought this suit against appellant to recover damages which it claims to have suffered by reason of appellant having refused to accept and pay for a car' of cauliflower which appellee alleged it had sold to appellant. Appellee alleged that it sold a ear .of cauliflower to appellant at Dallas, Tex., for $729.30, and that on arrival thereof appellant refused to accept it; that it attempted to sell it on the Dallas market, but was unable to do so, and it then diverted the car to New Orleans and “sold same to Lally & Lally for the fairest and reasonable
market price then obtainable at that place and on that date.” It further alleged that after paying the reasonable and necessary expenses it only received $91.94, leaving a balance due by appellant of $641.36. Appellant answered by general demurrer, a number of special exceptions, a general denial, and specially pleaded' that the car of cauliflower was not in accordance with that purchased by it; that it was purchased subject to inspection at Dallas; and that by reason of its being an inferior grade to .that purchased, it refused to accept same. It alleged there was either a partial or total failure of consideration. It alleged further that there was a market in Dallas when said cauliflower was refused by it. The cause was tried to the jury and submitted on special issues. The jury found that the car of cauliflower was in compliance with the contract made between appellant and appellee; that the expense of resale of the car was reasonable; and that appellee used reasonable diligence to and obtained the highest price therefor. Based on the findings of the jury and additional findings by the trial court, judgment was entered for appel-lee against appellant for $641.36. At the conclusion of the testimony appellant requested the court to instruct the jury to return a verdict for it, which was refused. Appellant filed a motion for rehearing, which was by the trial court overruled, and thereafter appellant filed assignments of error, embracing a number of assignments not embraced in said motion for rehearing. Among these assignments was one complaining of the action of the trial court in refusing to instruct the jury to return a verdict in its favor. Appellant objects to our considering this assignment because same was not embraced in the motion for rehearing. We overrule this contention. Under the holdings of the Supreme Court, an appellant can assign error independent of his motion for a new trial and complain of the ruling of the trial court on any question that arose during the trial on which the ruling of the court was invoked. Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667; Egan v. Lockney Farmers’ Co-operative Society (Tex. Com. App.) 284 S. W. 937.
Appellant contends that the trial court should have given its peremptory instruction, and that the court erred in overruling its objections to the submission of the issues as to whether the plaintiff used diligence to obtain the highest market value for the cauliflower, and whether the expense of the resale thereof was reasonable, because there was no evidence tending to raise either of said issues; appeHant’s contention being that there is no evidence that the cauliflower was sold for the highest market price in New Orleans or the amount of the reasonable expense incurred in the resale thereof. We sustain this assignment. AppeUee alleged that it sold the cauliflower to Lally
&
Lally of New Orleans and obtained the fairest and reasonable market price then obtainable. The testimony, however, shows without dispute that the sale was not made to Lally & Lally, but that the cauliflower was sold at auction by the Fruit Exchange, Inc., to one or more unnamed purchasers. Appellee alleged that it sold and shipped to appellant, at Dallas, 147 crates of Cauliflower at $1.40 per crate, and 333 crates at $1.50 per crate. Said 480 crates constituted the car in question. The only evidence on the question of market price and expense of resale was by the witness Sei-fert, who testified by deposition. He testified that he was the sales manager of appellee in the state of California; that they shipped the car of cauliflower to appellant at Dallas and appellant refused to accept it, and that—
After trying to sell the cauliflower in Dallas and on other markets, “we finally diverted it to New Orleans, where Lally & Lally, our brokers, advised us that in order to obtain the best obtainable price we should have the car sold at auction, and the car was sold in New Orleans at auction for $556.45, from which the selling expense and drayage was deducted. The car was turned over by Lally & Lally, our agents, to the Fruit Exchange, Inc., and by the latter sold in New Orleans. We have the original sales sheets for the car of cauliflower in New Orleans, which are attached hereto. The net amount received by the American Fruit Growers, Inc. (appellee), from the sale of the car of cauliflower in New Orleans, was $91.94.”
In addition to Seifert’s testimony above, there appear in the statement of facts three account sales, which purport to be sales by the Fruit Exchange, Inc., for account of Lally & Lally. The first shows 333 crates of flowers sold, 10 crates for $1.20 each, 10 crates for $1,25 each, and 313 crates for $1.30 each, a total of $431.40, with expenses deducted of $35.48, leaving the net proceeds $395.92. The second account sale shows 146 crates of flowers sold, 120 crates for 85 cents each, 10 crates for 90 cents each, 9 crates for 95 cents each, and 7 crates for a total of $5.00, making a total of $124.55, with expenses deducted of $8.72, leaving net $115.83. The third account sale shows one crate of flowers sold at 50 cents, with expense of 4 cents deducted, leaving net 46 cents. These three account sales show a total sales of $556.45, with the expense of $44.24, which would leave a balance of $512.21. There is in the statement of facts, in addition to the three account sales above, the following account sales:
Account Sales, Lally
&
Lally, Wholesale Brokers.
New Orleans, La., Nov. 15, 1924.
Contents, Cauliflower.
Sold for Account of American Fruit Growers, Inc.
Proceeds per attached accounting,
From Fruit Exchange, Inc.$513 21
Less ... 420 27
Net Proceeds .$ 91 94
There is nothing in the account sales to indicate what the $420.27 was subtracted for, nor why that amount was not sent to ap-pellee by Dally & Rally. There is no suggestion in the statement of facts or in the record that the $420.27 was any part or portion of the expense of the resale of the cauliflower, except the general statement by witness Sei-fert that the net amount received from the sale of the cauliflower was $91.94. Neither is there any suggestion in the testimony that any of the expense incident to the sale was either necessary or reasonable, and there is nothing in the record to show any'item of expense, except the $44.24 retained by the Fruit Exchange, Inc., as its commission and dray-age. There is nothing in the record to show that the Fruit.
Free access — add to your briefcase to read the full text and ask questions with AI
BARCUS, J.
Appellee brought this suit against appellant to recover damages which it claims to have suffered by reason of appellant having refused to accept and pay for a car' of cauliflower which appellee alleged it had sold to appellant. Appellee alleged that it sold a ear .of cauliflower to appellant at Dallas, Tex., for $729.30, and that on arrival thereof appellant refused to accept it; that it attempted to sell it on the Dallas market, but was unable to do so, and it then diverted the car to New Orleans and “sold same to Lally & Lally for the fairest and reasonable
market price then obtainable at that place and on that date.” It further alleged that after paying the reasonable and necessary expenses it only received $91.94, leaving a balance due by appellant of $641.36. Appellant answered by general demurrer, a number of special exceptions, a general denial, and specially pleaded' that the car of cauliflower was not in accordance with that purchased by it; that it was purchased subject to inspection at Dallas; and that by reason of its being an inferior grade to .that purchased, it refused to accept same. It alleged there was either a partial or total failure of consideration. It alleged further that there was a market in Dallas when said cauliflower was refused by it. The cause was tried to the jury and submitted on special issues. The jury found that the car of cauliflower was in compliance with the contract made between appellant and appellee; that the expense of resale of the car was reasonable; and that appellee used reasonable diligence to and obtained the highest price therefor. Based on the findings of the jury and additional findings by the trial court, judgment was entered for appel-lee against appellant for $641.36. At the conclusion of the testimony appellant requested the court to instruct the jury to return a verdict for it, which was refused. Appellant filed a motion for rehearing, which was by the trial court overruled, and thereafter appellant filed assignments of error, embracing a number of assignments not embraced in said motion for rehearing. Among these assignments was one complaining of the action of the trial court in refusing to instruct the jury to return a verdict in its favor. Appellant objects to our considering this assignment because same was not embraced in the motion for rehearing. We overrule this contention. Under the holdings of the Supreme Court, an appellant can assign error independent of his motion for a new trial and complain of the ruling of the trial court on any question that arose during the trial on which the ruling of the court was invoked. Phillips Petroleum Co. v. Booles (Tex. Com. App.) 276 S. W. 667; Egan v. Lockney Farmers’ Co-operative Society (Tex. Com. App.) 284 S. W. 937.
Appellant contends that the trial court should have given its peremptory instruction, and that the court erred in overruling its objections to the submission of the issues as to whether the plaintiff used diligence to obtain the highest market value for the cauliflower, and whether the expense of the resale thereof was reasonable, because there was no evidence tending to raise either of said issues; appeHant’s contention being that there is no evidence that the cauliflower was sold for the highest market price in New Orleans or the amount of the reasonable expense incurred in the resale thereof. We sustain this assignment. AppeUee alleged that it sold the cauliflower to Lally
&
Lally of New Orleans and obtained the fairest and reasonable market price then obtainable. The testimony, however, shows without dispute that the sale was not made to Lally & Lally, but that the cauliflower was sold at auction by the Fruit Exchange, Inc., to one or more unnamed purchasers. Appellee alleged that it sold and shipped to appellant, at Dallas, 147 crates of Cauliflower at $1.40 per crate, and 333 crates at $1.50 per crate. Said 480 crates constituted the car in question. The only evidence on the question of market price and expense of resale was by the witness Sei-fert, who testified by deposition. He testified that he was the sales manager of appellee in the state of California; that they shipped the car of cauliflower to appellant at Dallas and appellant refused to accept it, and that—
After trying to sell the cauliflower in Dallas and on other markets, “we finally diverted it to New Orleans, where Lally & Lally, our brokers, advised us that in order to obtain the best obtainable price we should have the car sold at auction, and the car was sold in New Orleans at auction for $556.45, from which the selling expense and drayage was deducted. The car was turned over by Lally & Lally, our agents, to the Fruit Exchange, Inc., and by the latter sold in New Orleans. We have the original sales sheets for the car of cauliflower in New Orleans, which are attached hereto. The net amount received by the American Fruit Growers, Inc. (appellee), from the sale of the car of cauliflower in New Orleans, was $91.94.”
In addition to Seifert’s testimony above, there appear in the statement of facts three account sales, which purport to be sales by the Fruit Exchange, Inc., for account of Lally & Lally. The first shows 333 crates of flowers sold, 10 crates for $1.20 each, 10 crates for $1,25 each, and 313 crates for $1.30 each, a total of $431.40, with expenses deducted of $35.48, leaving the net proceeds $395.92. The second account sale shows 146 crates of flowers sold, 120 crates for 85 cents each, 10 crates for 90 cents each, 9 crates for 95 cents each, and 7 crates for a total of $5.00, making a total of $124.55, with expenses deducted of $8.72, leaving net $115.83. The third account sale shows one crate of flowers sold at 50 cents, with expense of 4 cents deducted, leaving net 46 cents. These three account sales show a total sales of $556.45, with the expense of $44.24, which would leave a balance of $512.21. There is in the statement of facts, in addition to the three account sales above, the following account sales:
Account Sales, Lally
&
Lally, Wholesale Brokers.
New Orleans, La., Nov. 15, 1924.
Contents, Cauliflower.
Sold for Account of American Fruit Growers, Inc.
Proceeds per attached accounting,
From Fruit Exchange, Inc.$513 21
Less ... 420 27
Net Proceeds .$ 91 94
There is nothing in the account sales to indicate what the $420.27 was subtracted for, nor why that amount was not sent to ap-pellee by Dally & Rally. There is no suggestion in the statement of facts or in the record that the $420.27 was any part or portion of the expense of the resale of the cauliflower, except the general statement by witness Sei-fert that the net amount received from the sale of the cauliflower was $91.94. Neither is there any suggestion in the testimony that any of the expense incident to the sale was either necessary or reasonable, and there is nothing in the record to show any'item of expense, except the $44.24 retained by the Fruit Exchange, Inc., as its commission and dray-age. There is nothing in the record to show that the Fruit. Exchange, Inc., which sold the cauliflower at public auction in New Orleans, obtained the best price therefor, or that same was advertised before it was sold, or that any kind of notice of the sale was given. We do not think the evidence was sufficient to authorize the court to submit said issues or the jury to find that the cauliflower was sold at New Orleans for the highest market price, or that there was $461.51 reasonable and necessary expense incurred in the resale of same. The account sales which were attached to Sei-fert’s depositions, and which were offered in evidence, were not in any way identified, and appear to be simply unverified statements of account, sales made by the Fruit Exchange for the account of Rally & Rally, 'with nothing to show that they were correct or that they embraced the sale of the cauliflower in question, and same were not admissible in evidence and had no probative force. The rule seems to be well established that evidence which in itself is wholly incompetent, and therefore without probative force gains no vitality because admitted without objection, and same will not in itself support a verdict by a jury or a finding of fact by a court. Southern Surety Co. v. Nalle & Co. (Tex. Com. App.) 242 S. W. 197.
Where a purchaser of personal property refuses to accept it, the seller has a right to sell it for the best price obtainable, and after deducting the reasonable and necessary expenses incident to its resale, to recover as damages from the purchaser the difference between the price obtained less the reasonable expenses, and the original price 'at which the goods were sold. Before he is entitled, however, to recover, he must show that he has sold the goods for the best price obtainable and that the expenses charged in connection therewith were reasonable. Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Carver, Frierson & Co. v. Graves, 47 Tex. Civ. App. 481, 106 S. W. 903; F. C. Pennington Produce Co. v. Browning (Tex. Civ. App.) 293 S. W. 935; Id. (Tex. Com. App.) 299 S. W. 870.
Appellant by a number of assignments of error complains of the action of the trial court in permitting the witness Seifert to identify certain telegrams and the inspection certificate as made by M. C. Gregory, inspector for the United States Department of Agriculture at Dallas; and also assigns error to the court’s action in permitting said witness to testify to information he had received from appellee’s agents in Dallas and New Orleans with reference to how the cauliflower was handled and sold. Appellant’s bills of exception show that it only objected to the various written documents being identified by the witness, and did not object to their being actually offered in evidence. In appellant’s brief it does not present any propositions under its assignments complaining of the introduction of the evidence of which complaint is made. Our courts uniformly hold that where the appellant does not present any propositions under its assignments of error, same are thereby waived. The record being in the condition indicated, this court is not authorized to pass upon these assignments.
In view of the fact that the judgment of the trial court is to be reversed, we deem it proper, however, to say that if the proper objection had been preserved to the introduction thereof, neither the telegrams nor the account sales nor the inspection certificate were admissible in evidence under the identification as made by Mr. Seifert. It was not shown by his or any other testimony that appellant was in any way charged with having executed any of those instruments, or that it had any connection therewith, or that the witness knew of his personal knowledge that same were in fact correct. G. C. & S. F. Ry. Co. v. Hill (Tex. Civ. App.) 284 S. W. 594.
The judgment of the trial court is reversed and the cause remanded.