Appellant asks us to grant it a rehearing herein, because it is claimed that the evidence shows the jury must have taken into consideration about $800 worth of goods which were turned over to the Owensboro Wagon Company, for which no recovery could properly be had.
It may be that a careful examination of the statement of facts would show this to have been the case, and that error was therein committed to the prejudice of appellant; but we are of opinion that this question can not be considered by us, in the absence of an assignment of error properly presenting it, and also, because it was not called to the attention of the trial court in the motion for new trial. Clark Loftus v. Pearce, 80 Tex. 146; Degener v. O'Leary, 85 Tex. 171.
It is not claimed that the verdict exceeded the amount of damage claimed in the petition, so as to make the error fundamental.
The motion for rehearing will be refused.
Overruled.
Writ of error refused.