Hermes v. Vaughn , 3 Tex. Civ. App. 607 ( 1893 )

After due consideration of the motion for a rehearing in this case, this court adheres to its former holding, that to avoid the payment of the full amount of interest and the 10 per cent attorney fee stipulated in the note, it devolved upon appellees to plead and prove that a tender was made before this suit was instituted, or, as an equivalent to such tender, that Vaughn, the original payor of the note, had the money in Brownwood, Texas, where it was payable, and desired to pay it.

Neither of the defendants alleged in their answer that a tender was made before the suit was brought, or that Vaughn had the money in Brownwood, and would have tendered payment if the note had been there. Defendant Smith, after pleading his purchase of the land and agreement to pay the note, and setting forth his futile efforts to find its owner, avers, "that he has ever stood ready and willing and prepared to meet said obligation at maturity for his codefendant and self, or either of them." This is merely an averment, that he would have paid the note and accrued interest if it had been presented to him for payment at maturity. It is not equivalent to an averment, that if the note had been in Brownwood, payment would have been tendered.

It is contended, however, that if the record discloses reversible error, this court ought not to render judgment, but should remand the cause for another trial; that there was testimony tending to sustain the defense interposed by appellee Smith, and that the case may be more fully developed upon another trial.

Under our view of the law, the facts stated in appellees' answer, if true, constitute no defense; and appellees are not entitled to have the case remanded to enable them to amend their pleadings and interpose a defense of which they might have availed themselves in the first instance.

Under our liberal system of pleading and practice, a defendant can plead and prove as many matters of defense as he sees proper; and therefore if he sets up only one defense, which on appeal is held insufficient, he is not entitled, over the objection of the other party, to have the case remanded to allow him to set up another defense, which, without excuse, he has neglected to do at the trial in the court below.

It is provided by statute, that "when the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or the damage to be assessed or the matter to be decreed is uncertain,in either of which cases the cause shall be remanded for a new trial in the court below." Laws Called Sess. 22d Leg., p. 31.

We construe this statute to mean, that unless the damages to be assessed or the matter to be decreed is uncertain, or the pleadings raise a question of fact material to the rights of the parties, and which should be ascertained to do justice in the case, this court should render such judgment as should have been rendered in the court below.

As the facts pleaded by appellees in the court below constitute no defense, and the amount of the damages to be assessed is liquidated and certain, there is no material fact necessary to be ascertained in order to render a proper judgment; and, as required by the statute referred to, this court has rendered such judgment.

The motion for rehearing is overruled.

Motion overruled.