*1 pr'oper Bray by (Tex. L. Gould time. Gould” F. Peters et & Gould F. B. ux. Civ. “Fields (writ refused).” being provided appellee instrument 283 S. W. Such tbe herein. delivery by appellant cash one carefully agreed have We considered the appellee payment register of tbe and tbe facts, statement of and reached the conclusion Appellee bis answer admit- of $200. amply supports same signature, issues: Was and raised two ted the 'entered trial court. partnership appellee of Fields member of tbe is affirmed. signed instru- such & Gould at tbe time be ment, and, not, if be nevertheless on such instrument? A trial was bad before Honorable tbe county Coker of B. Henderson DE SPAIN. EVANS v. 26,1929. jury April At tervention of a completion tbe No. 7546. testimony appellant, ap- of tbe Appeals pellee Austin. Court Civil Texas. moved tbe court to enter appellee, judge sus- 17, 1930. Dec. tained and entered Rehearing in Part and in Part Over- Granted appellant excepted judgment, The has to this ruled March duly prosecuted appeal by of er- writ to ror court review. Bequest findings conclusions law and county of fact was filed with tbe clerk county, Tex., Henderson on June Coker, county A. B. judge of Henderson coun- ty, Tex., sitting judge case, in this bis filed findings conclusions of law and fact county July 11, clerk on 1929. The term county court at which said cause was tried adjourned and ended on June from the above facts that the tri- findings al court failed to file of fact and con- days iaw
clusions of journment within ten after ad- tbe judg- of the term of court which entered, appellant assigns ment was such failure on the and the of tbe court as error. appellant's assignment We do not think that sustained, and, in this case should bo question, discussion of tbe we deem it suffi quote very to cient from tbe recent case Hewitt v. Green “However, as follows: as there is a record, duly full statement of facts with approved to counsel for both parties, dowe not think the failure of the tri court file fact and conclu days provided sions of law within the ten require by law should a reversal of this case. Especially true in is this view of the fact that exception by plaintiff
no bill of was taken the failure of trial court to file the find ings proper and conclusions of law in time. delay of have or or caused contributed to some act omis appellate plaintiff. An sion of will not aof trial court for reverse the comply failure rule might procedure which excused ex judge, judge plained unless the has opportunity explain, obtaining ex correct method exception, plaintiff, planation bill of exception, bill of is not enti taken no a reversal of the for the fail tled judge file the conclusions in ure of the
232 Spain been forfeited reason of said De
having paid to A. said of $500.00 G.Allen sum prior completion to the of said fence. plaintiff damages claiming “The Spain having of reason A. De J. interfered with the sale of said land and broken up contemplated land, plaintiff a sale of said having actually paid the sum of $1107.50dol- securing pur- lars to real estate chaser for a brokers for land. said “And whereas said desire arbi- trate such and differences matters dis- pute provided by in the manner law.” arbitrators, designation Then followed of statute, they proceed direction that under the appeal and a waiver of-all from their findings. September 26, 1929, On said arbitrators' filed with district clerk their and the award, as follows: “We find under the that A. terms said lease contract that the said Spain complied J. De terms thereof and is entitled to a damages in balance $1800.00 settlement of the Lloyd Thomas, Kerr, A. and D. J. Louis 'due under thereof as the terms Angelo, appellant. Gayer, all of San Evans, J. W. is said entitled leased and addition thereto Abney, Roy J. L. and C. both Walker possession property of said so Lampasas, for December, 1929, day until 15th possession on which he shall surrender date BAUGH, J. Evans, W. all thereof to the said J. and Appellant appellee submitted certain and any claims of and characters submitted arbi- between them to matters in damages plaintiff us, including provisions (arti- title 10 under breaking up tration is land sale shall and defendant Appellant 238), at- 1925. 224 R. S. of hereby parties.” cles settled between said on sever- award and the arbitrators tacked the statutory The award a sought grounds set aside. to have same waived, right appeal became and the to enter court sustained the award The district duty court, if such award is Hence of the court. entered it as as appeal. doing acts are minis so the court’s follows: O. Allen arose as ease 1925; 231, Tex. Article 4 Jur. terial. 3,000-aere ranch owned Mattie Sanderson that, provides article where agree 694. While 233 county. They Lampasas it to A. J. leased right is reserved years, period begin- Spain three ment, the arbitrators shall decision be ning an annual rental October any final, be an award can attacked in paid, $2,250,$1,750 then re- of tained fraud, misconduct, partiality, for error. event the construction lessee to secure gross Dupree (Tex. Ridgill v. they agreed fences to build of certain lessors within S. Robbs v. Woolfolk 85 W. days. Appellant said ranch W. 4 Tex. Jur. Civ. cases there cited. And 224 S. 232 appears February 4, It that a con- 1929. on an award of the arbi troversy the lessors’ failure arose over authority given them trators excess attempted fences; an resale build agreement is is disregarded unless the excess property by by was interfered with said Evans of the valid such as award 86 Tex. damages against who claimed standing. left Fortune property of the failure to com- the plete S. W. fences; "September25, that oh said upon record does not disclose what evi- agreement was entered an arbitration reached decision. the arbitrators dence Spain, in and De which Evans into between agreement above out submitted to set plaintiff designated as and De- Evans questions: arbitrators three defendant, pertinent portions resulting Damages read follows: to be failure to built. defendant claims “It now demanding completed and is had forfeited plaintiff damages plaintiff reason thereof and Whether ranch. claiming has lease that said contract is segregate m Nor was liable can the 3. Whether De .on by appeal interfering sale the matter termination to Evans Evans of said lease in his favor from the matter of the mon ranch. ey judgment against him, appeal only as theory what not clear *3 judgment clearly indi latter. The being charged with was for the failure visible; necessarily in calls of Allen to build ap entirety. issue peal His its question. shows that The record judgment must its entire subject bought by lease thereof the ranch ty. He benefits disclaim cannot claim its Spain, Al did not assume De and that he clearly burdens, Only its when burdens the fences. len’s contract to build imposed first not have of the benefits he claims would out was reserved against year’s protect Allen’s to him. him -rental to awarded fixed time fulfill contract. The failure to in had sustaining The the trial court t-o for Allen lease reversed, the award of the arbitrators is already expired before Evans remanded, the cause with instructions to ap complained ranch, parently of was and the breach proceed with trial only evidence made Allen. case as if no made. award had been record, which nowhere contradicted Spain, item remanded, amount of that as to the Reversed and with instructions. damage Spain, had was that he damage only on the fence about $200 Rehearing. On Motion for major therefore, portion, account. The arbitrators must have award of the rehearing, appellant In Spain of the rendered, the surrender based premises sists that the case be reversed and expiration his three- before the instead of remanded with instructions. year lease. concluded, upon investiga- We have only tion, the arbitra matter submitted to is correct. respect whether or not De tors issue before authority lease. No had forfeited said was whether or not the award the arbi it to said arbitrators to terminate trators should be set aside or entered as the forfeited, otherwise. If De had judgment of the court. The trial had binding contract remained valid authority award, no alter or amend that had concern. which the arbitrators They expressly no further1 reopen nor to the same on its merits. The found had com that De only jurisdiction, if the award were plied lease; the terms of said under article was to enter premises then undertook to him oust court; same as the of the and in date, own a future a mat their accord at -respect his acts are ministerial. ter not submitted to them the arbitration Having agreement, authority concluded that the award as made they had aside, was void and should be set finding to that ignored Their and award in determine. relegated are void, respect under their con is therefore unless can be tracts. money damages v. Nilson Mottier award sustained, 5 C. J. as held in Fortune v. su pra. However, these two cannot be This icourt should render the separated. obvious, think, It is we that much which should have been entered the trial money of the award Evans was made Judgment is, court. of the trial court there- of, dependent part upon, aas the surren fore, reversed, here rendered premises der De on December setting aside the award arbitrators en- retaining instead of his same until tered of that expiration three-year the ther, of his lease. Nei prejudice, however, any rights of either therefore, independent can stand arising party under their contract. other, and, thereof is granted, judgment entire should have been set aside Motion of trial court re- versed, the district court. rendered.