Marion v. Hawthorne

ON MOTION FOR REHEARING

Following appellant’s motion for rehearing, we have given further study to the wording of Special Issue 5 in the court’s charge and have concluded we were in error in holding in our original opinion of February 24, 1964, that the issue was sufficient.

Plaintiff pleaded “ * * * the price for which said cotton was sold was less than the contract price and was the best and most favorable price that plaintiff could secure for said cotton.” Special Issue 5 only inquired if plaintiff exercised ordinary care in selling the cotton. Neither in said issue nor in any other issue in…