Dromgoole Bros. v. Lissauer
Dromgoole Bros. v. Lissauer
Opinion of the Court
Bissauer & Co. sued Dromgoole & Co. in justice’s court, precinct No. 1, of Bexar county, upon sworn account for $162.9S, which was denied under oath of Dromgoole & Co.; they admitting an indebtedness of $63.87. Upon trial before a jury verdict was returned in favor of plaintiffs for $56.78, and judgment entered accordingly, from which plaintiffs appealed to the county court of Bexar county for civil cases. Plaintiffs filed first supplemental petition consisting of demurrer, general denial, and pleas of limitation of two and four years. Defendants filed exceptions to the pleas of limitation contained in the supplemental petition, and filed first amended original answer, adopting their original answer with the exception of alleging the amount due plaintiffs to be $56.78, which amount they offered and tendered to plaintiffs. The trial in the county court resulted in a verdict for plaintiffs for $162.98, upon which judgment was entered for said amount as principal and $16.41 interest, in all $179.-39, with 6 per cent, interest per annum thereafter, from which defendants appealed.
The first assignment of error attacks the sufficiency of the sworn account as the basis of the suit. This assignment goes to the form and sufficiency of the sworn account, charging that it fails to specifically set out the articles and items for which plaintiffs sue, and that it is verified by inconsisteitt affidavits.
The second, fifth, and sixth assignments may be considered together, as appellants, under, assignments 5 and 6, refer to propositions under the second assignment to save repetition.
The second assignment raises the issue of the admissibility of the testimony of Julius Klein and Max Kallman regarding the reasonable and market values of the articles sold defendants by plaintiffs, as against the objections (1) that the suit is upon an express contract, and (2) such value is not attempted to be shown at any given point. The fifth assignment raises the issue of the admissibility of the testimony of Klein as to what goods were shipped by plaintiffs to defendants, and how much money defendants ■paid to plaintiffs at New York, as against the objection that such testimony was hearsay. The sixth assignment is directed against the admission of the testimony of Kallman as to the terms of the contract with defendants, over the objection that the contract was made in San Antonio while the witness was in New York.
The propositions are as follows:
(1) “"Where a witness is shown not to have a personal knowledge of the accounts he may be called upon to verify, the fact that he was in Texas on the dates of shipment of such goods from the city of New York, has never seen any of them, and his only knowledge of the kind, character, and number of such articles is from information received from others, not the parties to be charged, such testimony is merely from hearsay, is wholly incompetent, inadmissible, and illegal.”
(2) “The proof in every ease must be confined to the issues raised in the pleadings; and it is error to admit proof of market value at any point or place, in a suit upon an express contract for goods sold for prices fixed at the time the contract was made. Such proof is misleading, wholly immaterial, irrelevant, and impertinent.”
(3) “Even where market values are admissible, as where the suit is for- a quantum meruit, the knowledge of the witnesses of market values must first be established; and such knowledge is confined to the time, place of sale and delivery.”
The second and fifth assignments are also overruled.
Assignment No. 3 is almost exactly in the words of No. 2, and is overruled for the reasons hereinbefore given.
The fourth assignment reads as follows: “The charge of the court is a mere platitude; it does not submit a single question of law. It does not submit to the finding of the jury the question as to whether the contract between plaintiffs and defendants was an express contract between .plaintiffs and defendants, whether it was an express contract, wherein the value of the articles were specifically agreed upon, or whether the values were to be established in the proper market. There was nothing in the pleadings raising this issue of market or reasonable values; the evidence of plaintiffs contained no other proof of value; and no direction whatever is given to the jury to ascertain any fact as to value in any way.”
The seventh assignment reads as follows: “The court erred in refusing to grant defendants’ motion for new trial for the many errors set out in said motion appearing of record in this cause, and because the verdict and judgment are contrary to the overwhelming facts in evidence taken from the jury by the charge of the court in not submitting the case to the jury on a single issuable fact, but solely submitted on the formal figures in the pleadings to be added' and subtracted, without any rule given to the jury as to finding the true and correct balance from the testimony in the case, and because almost the entire legal and proper testimony adduced conclusively established the amount admitted and tendered to plaintiffs, as shown by the record.”
The eighth assignment is almost word for word in the same language as the seventh.
The judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.