Adams v. Le Sage , 25 S.W.2d 207 ( 1929 )

As to the legal questions discussed in the majority opinion on rehearing the writer is in agreement, but as I see it, the trial court did not err in refusing special issue No. 1, requested by the defendant, and even if such action was erroneous the question was not presented to this court for review.

The suit (omitting other matters not material to the question now under consideration) was upon a promissory note to recover judgment for a balance of $197.20, claimed to be due. The only defense pleaded (that in fact would be a defense) was that of payment. R.S. 1925, art. 2014, provides both the necessity and requisites of such a plea. The plea was good and tendered the issue because it sufficiently described the manner and means of the alleged payment; that is, that the plaintiff had advanced to defendant the amount with which to pay the balance due on the note, upon an agreement to charge it to the defendant upon account, to be paid in monthly installments, and that with such advancements the note had been paid off and discharged.

The sole question for the jury was whether or not the note had been paid. That issue was submitted to the jury and found against the defendant. In order to prove payment (as to which the burden was upon the defendant), it was for him, not only to prove the advancement and agreement alleged, but it was further necessary to prove the intent on the part of both parties that the note should be discharged, and not merely held by plaintiff as the owner. The agreement which may be said to have been shown by uncontradicted evidence was not conclusive of the existence of an intent on the part of both parties that the note should be discharged. That is but another way of saying that the proof of such advancement and agreement was not conclusive of the issue of payment. On the ultimate issue of payment, therefore, the agreement which special issue No. 1, requested by the defendant, asked the jury to find, was but a merely evidentiary matter. It was not a question to be submitted to the jury for that reason and for the further reason that the evidence did not raise such an issue of fact, since that was supported by the uncontradicted evidence. As the issue submitted was conclusive and the one refused was not only inconclusive but called for a finding of some of the matters of evidence necessary to support the issue of payment, the trial court did not err, I think, in refusing it. I fail to see the applicability of the principle discussed in Fox v. Dallas Hotel Co.,111 Tex. 461, 240 S.W. 517. Had the matter of payment been material and plaintiff had asserted that payment was made in one way and the defendant asserted that payment was made in another way, then certainly, under that authority, the defendant would have had the right to have the jury pass upon whether or not payment had been made in the manner asserted by the defendant. But here plaintiff was not contending that payment was made in any different way than that asserted by defendant. It was the position of plaintiff that no payment had been made. If payment was made, the means by which it was made was relatively unimportant. The fact of payment was all-important. The court certainly denied no right that defendant can lawfully claim in denying him the request to have the jury find certain facts established by the undisputed evidence that if found was not conclusive of the question whether or not the note had been paid.

To me it seems just as certain that, even if it should be conceded that the trial court should have given special issue No. 1 requested by defendant, the question of error in refusing to do so is not presented by appellant's brief. As I understand, it is not sufficient to merely make complaint of a ruling of the court in a motion for new trial or by the filing of assignments of error. The grounds upon which the reversal of a case is sought are under the rules required to be presented as points or propositions. These are something distinct from assignments, since entirely different provisions are made with reference to each, and it is only required that the points or propositions be germane to some one or more of the assignments. The assignments are required to be set aside to themselves and their function in the brief is only to furnish the means of a ready reference to determine if the points or propositions are germane. The only point or propositions having any reference to the assignment complaining of the refusal of the court to give special issue No. 1 raises a question of an account being barred by the two-year statute of limitation (Rev.St. 1925, art. 5526). It is clearly not germane to the assignment. The assignment itself, if it be considered good as a proposition, is not submitted as such. What better standing then could it have than any other assignment that is not briefed, either by presenting same as a proposition of law itself or by submitting a proposition germane to it? The record does not disclose any dereliction on the part of appellee. If the appellant evidenced his consent to the trial of the case on a wrong theory of law, he could not justly complain if it should be sent back for trial. That not being the case, however, it seems to me that the judgment of the trial court should be affirmed.