While the record in this case is not in a wholly satisfactory condition, so that we are entirely free from doubt, yet after a consideration of the whole case we find ourselves unable to say that any such error has been committed as to require a reversal of the judgment below. The special charge complained of in the first assignment of error, in some respects, at least, seems to be upon the weight of the evidence as urged; but as presented in the assignment the objection is limited to a specific part of the charge, to wit, to that part referring to the custom alleged, which assumes that the custom "was for the out turns to be made as is shown to have been made in this case." This, of course, assumes that out turns had been made in this case; but so far as we are able to determine from the record there is no doubt as to this. The appellee testified without contradiction, as we understand the record, that after the classification made by him and Moore in Dublin he returned to appellant, as usual in such cases, the result of the classification; such returns, as we understand, constituting what is designated as "out turns." We accordingly feel constrained to overrule the assignment.
We think it is to be implied from the contract, as alleged in plaintiff's petition, that the grade and classification of the cotton should be its real or true grade and class. In order, therefore, to admit testimony of its real grade as found by appellee and Moore in Dublin, it was unnecessary that there be an allegation in the petition that the contract provided for a grading and classification in Dublin. The objection, therefore, to the testimony referred to, on the ground that it was not alleged in the petition that the cotton was to be "paid for on the grade and class made by the plaintiff at Dublin, Tex.," is not maintainable, and the second assignment of error must therefore be overruled.
There is possibly some force in the objection that Moore should not have been permitted to testify from the copy of his books as to the grade and class of the 85 bales of cotton in controversy at Dublin. The testimony of the keeper of the books himself, supplemented by further testimony that the books were correctly kept, would be the best evidence; but inasmuch as appellee testified that he was present and assisted in the grading and classification of the cotton at Dublin, and inasmuch as he further qualified as an expert to give such testimony, and there was no objection to the testimony so given, and inasmuch as we do not otherwise find any dispute as to the result of the grading and classification at Dublin, we think the objection to Moore's testimony above noted must be overruled. What we here say also sufficiently answers appellant's assignment of error insisting that the judgment is not supported by the evidence. And the majority, at least, have concluded that appellant's refusal to take back the cotton sold by him at the same price be received for it, notwithstanding an advance of $2.50 per bale, was in the nature of an admission on his part that was relevant to his credibility as a witness, and as a circumstance also proper for consideration in passing upon the weight of appellant's testimony that his grade and classification at Moran were the correct ones.
On the issue of whether the contract was for the grading and classification to be done at Moran, we think the evidence is merely of conflicting tendencies, and we do not feel authorized to disturb the verdict of the jury in a determination of the conflict.
The judgment is accordingly affirmed.