Opinion
No. 8306.
December 18, 1929.
Appeal from Cameron County Court; John I. Kleiber, Judge.
Action by M. G. Benson against H. G. Marshall. Judgment for plaintiff, and defendant appeals. Affirmed.
E. T. Yates, of Brownsville, for appellant.
H. B. Galbraith and B. N. Goodrich, both of Brownsville, for appellee.
Appellee sought a recovery of $1,000 from appellant, alleged to be due for ten shares of the capital stock of San Benito Bank Trust Company, of the par value of $100 each, which appellee had delivered to appellant and for which appellant had agreed to pay $1,000. The cause was heard by a jury to whom special issues were submitted, and on their answers thereto judgment was rendered in favor of appellee for $1,000.
In the answer it was alleged that "on or about the 5th day of January, 1927, plaintiff sold to defendant, and afterward delivered to defendant, ten (10) shares of capital stock of San Benito Bank Trust Company of San Benito, Texas, the face value of which was one hundred ($100) per share, with the specific understanding and agreement that this defendant was to accept said transfer under the condition that defendant was to pay only the actual value of said stock at the time the same was delivered and with the specific and definite understanding that defendant was not to lose one cent from the purchase of said stock, and under plaintiff's express warranty that this defendant was taking said stock at the real value and without loss to this defendant at that time or at any subsequent time. That said stock as above described was at the time of said transfer, and has been at all times since said transfer, utterly worthless and of no value, and said transfer was without consideration, of all of which plaintiff then and there had notice." The court submitted to the jury the question: "Did the plaintiff unconditionally guarantee the stock in question to the defendant for the period of one year? You will answer this question Yes or No."
No objection was urged by appellant to the charge of the court. Appellant cannot now object to the manner of presenting issues nor of a failure to present matters that he may conclude should have been presented. In fact, the only matter of real dispute in the testimony was as to the kind of guaranty given by appellee. He said he guaranteed appellant against loss for a year, if the wife of appellant had to leave San Benito on account of ill health. Appellant swore that the guarantee was confined to a year, but was unconditional.
Appellant seeks in his brief to draw a distinction between guaranteeing the value of the stock for one year and an agreement to protect appellant from loss on the stock for one year. It is a distinction without any substantial difference.
Appellant, in his first assignment of error, states that he denied, in his answer, that he purchased the stock from appellee. That assertion is at variance with an allegation in the answer that "plaintiff sold to defendant and afterward delivered to defendant ten (10) shares of capital stock of San Benito Bank Trust Company of San Benito, Texas." The controlling issue in the case was whether the value of the stock was guaranteed by appellee.
The judgment is affirmed.