W. G. Street and D. M. Creamer brought suit against appellee to cancel certain notes executed for a gas tractor engine, as well as a second series of notes given for a separator and to cancel the mortgages given to secure the above notes.
The appellants alleged that Street contracted to purchase the engine and executed the notes amounting to the sum of $2,000, three for $300 each and two for $400 each; that he agreed to purchase, relying upon representations and warranties that the engine was a 40 horse power engine, of good material, and durable; that he relied upon such representations and warranties; that at and before he executed the notes he notified the appellee of his purpose in purchasing the engine and that he would not purchase unless it had power for the work mentioned, and would successfully do it, and appellee repeated that the engine was a 40 horse power and would dó the work successfully, and would pull plows sufficient in number to plow and turn a strip of land of the width of the-engine, 10 inches deep; that the appellee, after being informed of the purposes for which the engine was desired and the plows to be used, represented that if Street would sign the order contract for the engine and the notes above mentioned, and leave them with the appellee, appellee would take the engine and plows out to the farm of D. M. Creamer, and demonstrate to Street that the engine had the power represented and, after proving that it was as represented, Street could accept it in writing, and thereby conclude the contract of sale and purchase of the engine; that Street accepted this proposition and thereupon signed the order and notes and left them with appellee under the agreement that appellee was to demonstrate the engine would do the work represented and warranted before he was required to accept the engine ; that D. M. Greamer, relying upon such representation and the facts above alleged, signed a guaranty contract. It is alleged the engine, after trial, did not have the power and would not do the work represented and after other trials on the part of appellee, and on the part of appellant, it would not do the work, and that he (Street) refused to accept the same. It is alleged, at some length, that there were repeated trials and promises to make the engine do the work, and appellee induced Street to retain possession of the engine under a promise to make it do the work, which several and numerous trials and times the engine disclosed its inability to do the work, and Street informed appellee he would not accept the engine and that he did not accept it, but retained the possession only for the purpose of giving appellee an opportunity to make it do the work represented ; and finally, upon a total failure to make it do the work, the appellee instructed Street to deliver it back to appellee, which he did, and that appellee has it now in its possession. It is alleged substantially that the separator was purchased upon the condition that the engine would do the work and the notes therefor executed upon such conditions; or appellee was to furnish a new engine, which it never did. There is also a count setting up special damages, for which a recovery is sought. The prayer is to cancel both sets of notes and the mortgages, and for the damages.
The appellee answered by a plea in abatement, denials, and also to recover on the notes mentioned in- plaintiff’s petition, and for foreclosure of the mortgage lien.
The trial court submitted the case on special issues, but afterwards withdrew the case from the jury and instructed a verdict for the appellee.
[1] The first and second assignments present the action of the court in excluding the testimony of Street and Dreamer, to the effect that the engine was taken on trial, and, if not as represented with reference to its power to do the work, Street was not to accept it, and that the order and the notes were left with appellee upon such agreement; that Street was to accept the engine in writing if it did the work.
We gather from the pleadings and the evidence offered it was the contention that the purchase and sale of the engine was not consummated and should not be until after trial, and if as represented Street should accept the engine in writing; and the orders and notes- were left with appellee upon *727that condition. The order therefore did hot become a binding contract between the parties until the engine was so accepted, and the notes were not obligations binding upon appellants. If the allegations of appellants are true, the contract of sale, as evidenced by the order and notes, never went into effect, and therefore was not the contract of the parties. This being true, the evidence on that issue should not have been excluded, as it would not be in its nature a contradiction of the written order and notes. It was simply offered to show that the order and notes were not executed under such circumstances as to become-a binding contract. Wigmore on Evidence, §§ 2408, 2410; Watson v. Rice, 166 S. W. 106; Parker v. Naylor, 151 S. W. 1096; National Novelty Import Company v. Duncan, 182 S. W. 888.
Our Supreme Court recognized the application of the above rule to cases of this character in Holt v. Gordon, 174 S. W. 1097. The very question here at issue is decided in two Kentucky cases: J. I. Case Threshing Machine Co. v. Barnes, 133 Ky. 321, 117 S. W. 418, 19 Ann. Cas. 246; Wilson v. Nichols, 139 Ky. 506, 97 S. W. 18. In Seitz v. Brewers, 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837, the Supreme Court of the United States saiO:
“Undoubtedly, the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if under the circumstances of the particular case it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them.”
If the allegations and the offered evidence are true, the parties did not intend the writing to be a complete and final statement of the whole transaction; in other words, there was to be no sale or liability until Street should accept the engine in writing, and until that contingency there was no obligation imposed by the order or notes upon either party.
[2] By the third assignment complaint is made at the action of the court in permitting the question to and answer of Creamer, with reference to transferring his property to his -son, to defeat any judgment which might be rendered on the guaranty .sued upon. The answer of the witness shows no injury. Our view of this character of testimony is expressed in Taber v. Eyler, 162 S. W. 495; Hynes v. Winston, 40 S. W. 1025. A part of the question, and the answer, as set out under the bill, was proper, but part perhaps not permissible under the rule, as we understand it. The evidence admissible and that not admissible should have been segregated and the proper objection made to that not admissible; otherwise, the objection cannot be considered. Under the bill, no error is -shown.
[3] The fourth assignment is overruled. This evidence objected to is in its nature the opinion of an expert. The fact that he referred to having seen other engines of like kind is, in its nature, a predicate, showing the qualification of the witness to testify as an expert. It does not appear to have been the purpose of the testimony to prove the power of other engines, and does not fall, in our judgment, under the excluding rule, which precludes evidence of what other like machines did; but, as we interpret the evidence, it is an opinion as to the capacity and power of the particular engine in question.
[4-6] The fifth assignment is sustained. Under the facts of this case, the trial court should not have instructed a verdict for the appellee. Aside from the evidence excluded as set out .under the first and second assignment, there is testimony of the return of the engine to appellee under its direction and a rescission of the contract by the parties; or under the alleged agreement that Street should accept, by written acceptance, the engine as satisfactory, and according to the representation and warranties "before there was a sale or contract. We think these issues are raised by the pleadings and the evidence. The allegations amount to an assertion that, before Street would be obligated to pay- for the engine, he should have a right to try it and ascertain if it would come up to the representations and that his satisfaction and acceptance should be evidenced by a written acceptance. Where this is the case, he must manifest dissatisfaction in a reasonable time, which is, ordinarily, a question of fact, under the circumstances surrounding the parties. Meehem on Sales, §§ 665, 670, 671, and authorities cited in Cameron Steam Pump v. Lubbock, 167 S. W. 259, 260. The written contract or order in this ease requires certain notices, etc., with reference to a failure of warranty. If the appellants were relying upon the written warranty, they would be required to comply with its terms unless they allege and prove a waiver on the part of appellee. It has been argued here that the pleadings amount to a plea of waiver. We are not prepared to agree with appellant in that' contention. There are certain acts and facts alleged from which a waiver might be inferred, but this is not sufficient as a plea. In pleadings, the facts to be established should be directly averred,and not merely suggested as an inference from other facts stated. Kessler v. Bank, 21 Tex. Civ. App. 98, 51 S. W. 62.
[7] The case will be reversed for the reasons above stated. The appellee, however, presents a cross-assignment of error, to the effect that the trial court erred in not sustaining its plea of abatement. The petition in this case alleges a cause of action against appellee, as heretofore set out, and asks for a cancellation of the notes given on the engine and the separator and alsp for the cancellation of the mortgages given to secure the notes, as well as for damages. It is al*728leged in tlie plea of abatement that appellee brought suit against tbe appellants, Street and Creamer, in tbe district court of Dallas county, on tbe notes, and to foreclose tbe mortgages herein sought to be canceled; that tbe appellants here there filed their answer and cross-petition to cancel the notes and mortgages and to recover damages substantially on the same grounds as set up in this case; that the parties and subject-matter in the two suits are identical; that the suit in Dallas county district court was first filed; and that court first obtained jurisdiction. We believe if the facts alleged in the plea are proven the suit in Potter county should be abated. There is some apparent conflict in the authorities in this state upon this question; but we believe the rule is fairly well established by our courts that two courts having concurrent jurisdiction will not at the same time entertain a suit between the same "parties over the same subject-matter, but the court first obtaining jurisdiction will hold it to the exclusion of the other. Cattlemen’s Trust Co. v. Blasingame, 184 S. W. 574; Lumber Co. v. Williamson, 164 S. W. 440; Goggan v. Morrison, 163 S. W. 119; Sparks v. Bank, 168 S. W. 48; Blassingame v. Trust Co., 174 S. W. 900; Ruling Case Law, vol. 1, Abatement, §§ 1, 2.
The case will be reversed and remanded.
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