154 S.W. 247 | Tex. App. | 1913
The first proposition under this assignment is that in a suit on a contract plaintiff cannot recover when the evidence does not sustain the exact contract alleged in the pleadings. The proposition states an axiom of the law. Mason v. Kleberg,
There is no merit in the second assignment of error. It was not incumbent upon appellant to allege or prove fraud or negligence. In the absence of excuse which the law recognizes as a defense, it was the duty of appellant to return the colt to appellee when demanded, and not to do so was a wrong. The absence of fraud and negligence on the part of the bailee are matters of defense.
The third, fourth, and fifth assignments charge error in the judgment in favor of P. A. Vance over against appellant, Bagley. This was not error. It is not denied that Bagley and Vance were partners. The disputes between the partners were immaterial so far as appellee was concerned. It could not affect the appellee's right to recover, even if true, that one of the partners had repudiated the authority of an agent of the firm, especially since it is shown that *249 appellant had no knowledge of such repudiation. The court found as a fact that Bagley and Vance dissolved partnership on January 25, 1909, and at that time agreed that Bagley should be "entirely responsible for all animals placed with defendants for pasturage," and also that the colt was seen alive in the pasture after January 25, 1909. Though the evidence is conflicting, there is evidence from which these facts could be reasonably found, and, the trial court having so concluded, his findings will not be disturbed.
The court did not err as charged by appellant's sixth assignment of error in failing to find additional facts enumerated there. Such of those facts as were material are deduced from evidence which was contradicted. The findings of the trial court upon conflicting testimony are final.
Appellant takes the position that if this case is reversed, it should be rendered because it is apparent of record that the cause of action upon another trial will be barred by the statute of limitations. If the action is barred, which question we do not pass upon, that would be no reason for rendering judgment in this court. The bar of the limitation is a matter of defense. Some people will not take advantage of the statute of limitation to defeat a debt, and we would not assume, if we could, that the appellant will do so in this case.
The judgment of the lower court is reversed, and the cause remanded.