
    FEDERAL STOCK FOOD CO. v. THOMAS-TYLER CO. et al.
    (No. 24(3.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 7, 1921.)
    Appeal and error <&wkey;930(3)— Judgment affirmed on issue which court could have found for defendants in absence of request for submission.
    In an action for breach of sale contract, where the defendants pleaded alteration and inferior quality of the goods, a judgment for. defendants on a verdict by the, jury, to which only the issue of alteration was submitted, will be affirmed, though the claimed alteration was immaterial so as not to relieve defendants from their contract, where the evidence would support a finding for defendants on the issue of quality, and no request was made to submit that issue to the jury.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Action by the Federal Stock Food Company against the Thomas-Tyler Company and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Woods & Morrow, of Kaufman, for appellant.
    ■ Wynne & Wynne, of Kaufman, for appel-lees.
   HODGES, J.

The appellant, Sam K. Strickler, who was doing business under the name of the Federal Stock Food Company at Mifflinburg, Pa., sued the appellees to recover a debt amounting to $275. The testimony shows that on January 7 the appellees gave to the appellant an order for 600 bags of Federal stock and poultry conditioner. The material portions of the order are as follows:

“Order Number-.
“P. O. Mabank, Tex., Jan. 7, 1919.
“Ship at your earliest convenience the following merchandise on regular feed stuffs terms, sight draft, with bill of lading attached, f. o. b. shipping point:
“100 25 lb. bags Federal stock conditioner @
$2.75 . $275 00
50 lb. bags Federal stock conditioner @
$5.50 .
100 lb. bags Federal stock conditioner @
$10.00 .
25 lb. bags Federal poultry conditioner
@ $2.75 .
60 lb. bags Federal poultry conditioner
@ $5.50 .
100 lb. bags Federal poultry conditioner
@ $10.00 .
Terms: Sight draft attached to bill of lading First Nat. Bank, Mabank, Texas
Total .$275 00 “Free goods to pay freight.”

The appellees, defendants below, pleaded, among other things, that the order had been changed after it was signed by inserting the words “Sight draft attached to bill of lading First Nat. Bank, Mabank, Texas,” which appear at the bottom of the quotation. They also pleaded that when the goods reached Mabank, Tex., they were examined and found to be inferior in quality, not as represented, and in bad condition.

The court submitted only the following question to the jury: Was the pencil memorandum term, “Sight draft attached to bill of lading First Nat. Bank, Mabank, Texas,” written in the order for the merchandise sued for before oq after it was signed by Thomas-Tyler Company? The jury answered that it was inserted after the order was signed. A judgment was then entered in favor of the defendant.

The appellant requested a charge directing the jury that the alteration claimed was immaterial and did not affect the validity of the order given. The refusal of that charge is the only error assigned. If that were the only defense presented by the appellees, we should feel inclined to reverse the judgment, but there was testimony tending to show that the goods were of an inferior quality, and that they were not put up in sacks according to the contract. While that issue was controverted, it was ■ one upon which the court had a right to pass in the absence of any request that it submitted to the jury. That defense, if true, was sufficient to defeat a recovery, even if the alleged alteration was immaterial.

The judgment is affirmed. 
      íís>For otber oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes
     