Trimble v. Tucker

Decided July 2, 1914

Court of Appeals of Texas · decided 1914-07-02

1. Appeal and Error (§ 934*) — Questions Review able — Presumptions. The presumption is in favor of the regularity of the judgment appealed from, and where the court on appeal cannot determine whether the party complaining is entitled to a credit, or, if entitled thereto, whether he has not received a credit, the judgment will not be disturbed on the theory of a disallowance of the credit. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 37S2; Dec. Dig. § 934.*] 2. Sales (§ 233*) — Rights ox Original and Subsequent Buyer prom Same Seller. Where, in an action by the original buyer of an automobile against a subsequent buyer from the same seller, who had remained in possession after the first sale, there was no evidence that the original buyer’s title was questioned in a suit in which he was not a party, or that he was liable to the subsequent buyer for any money he might pay in settlement of the action, evidence of payment by the subsequent buyer was inadmissible. [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 653-656; Dec. Dig. § 233.*] 3. Appeal and Error (§ 171*) — Questions Reviewable —Theory ox Case in Trial Court. Where the pleadings in an action for the title and possession of goods showed that the parties were adverse claimants, and the jury found that plaintiff was the sole owner, subject to the payment of a part of the purchase price, refusal to charge that the parties were tenants in common, and that one tenant in common could not sue his cotenant for any rent of the common property, was not erroneous. [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. § 171.*]

Affirmed · Decided 1914-07-02

HIGGINS, J.

¶1 (concurring). I am of opinion that appellant’s special charge, the refusal of which is made the basis of the first as *1023 signment, was a proper one, and should have been given, but the error in its refusal is harmless, since the jury’s verdict discloses that in the assessment of damages for the unlawful detention of the car, credit was given for all items to which appellant was possibly entitled. If it should be conceded that the second and sixth assignments present abstract error, which, as Judge HARPER holds, rs not the case, nevertheless for like reason, the error is harmless. I concur in the affirmance of the case.