Moffitt v. Hieby (229 S.W.2d 1005, 1950)

HÁRVEY, Justice.

Mrs. Ursula Hieby sued Perry L. Moffitt and Charles Elick, doing business as Green Valley Packers, and the United States Fidelity & Guaranty 'Company, as surety upon their bond, to recover damages for the nonperformance of a contract with reference to the sale and purchase of certain citrus fruit grown by Mrs. Hieby in her orchards located in Hidalgo County, Texas. A cross-action for damages was filed by Moffitt and Elick. At the close of the evidence the court granted plaintiff’s motion to instruct the jury to render a verdict in her favor and against Moffitt and Elick on their cross-action, and upon such verdict judgment was rendered against the defendants for the sum of $2,866.27.

Upon appeal to the Court of Civil Appeals Moffitt, and others, presented the point that the trial -court erred in not permitting the jury to pass upon their defense that a subsequent oral contract, dated March 12, 1948, superseded the earlier written contract of November 21, 1947. The next point urged in the Court of Civil Appeals by Moffitt, and others, was that the trial court erred in refusing to submit to the jury the question of whether Mrs. Hie-by, the seller, breached her implied obligation to take proper care of and to water the orchard. Moffitt and Eli-ck also pleaded that the trial court committed error in refusing to submit to the jury the question of whether or not the citrus fruit was damaged by an Act of God, which was alleged to have been a windstorm on December 2, 1947. The Court of Civil Appeals reversed and remanded the judgment of the trial court, holding that the failure of the trial court to submit to the jury the question of whether Mrs. Hieby breached her implied obligation to care for and water the orchards, as well as the failure to submit to the jury the question of whether or not the ■fruit was damaged by an Act of God, was reversible error. That court also held that the trial -court was -correct in not sub'mitting an issue to the jury as to whether or not there was a subsequent new contract made