145 S.W. 1072 | Tex. App. | 1912
We do not think the action of the trial court in consolidating the two suits entitles appellants to a reversal of the judgment. Appellee's suit was to recover the automobiles as well as for damages. The suit in the name of Hugh H. Lewis, Jr., as plaintiff, was to recover a debt claimed to be due for work on the automobiles, material and supplies furnished therefor, storage thereof, and to foreclose a lien claimed thereon to secure the payment of the debt. Whether appellee was entitled to recover the automobiles or not depended on whether he owed Hugh H. Lewis, Jr., such a debt, so secured, and was ready to pay it, or not. Sayles' Stat. arts. 3319, 3320; Lithgow v. Sweedberg, 78 S.W. 246. These questions, it seems to us, not only could, but should, have been determined in one and the same suit. The contention made that the suits should not have been consolidated because the parties were not the same in each of them, we think, is satisfactorily answered by the finding of the jury, supported by ample testimony, that appellants were partners doing business in the name "Hugh H. Lewis, Jr." If they were partners, then they, and not Hugh H. Lewis, Jr., alone, were the plaintiffs in the suit brought against appellee, and the parties on the respective sides of the controversy covered by the two suits were the same.
The second paragraph of the charge is attacked as on the weight of the testimony, in that in it the court assumed as facts: (1) That appellee about April 7, 1910, demanded the automobiles of H. H. Lewis; (2) that appellee then tendered to said H. H. Lewis a sum of money in payment of the debt due for repairs, etc., of the machines; and (3) that said H. H. Lewis was such an agent of Hugh H. Lewis, Jr., as to make a tender to him binding on the latter. In answer to these objections to the charge, we think it sufficient to say: "As to the first one, that the testimony that appellee did make such a demand on H. H. Lewis was undisputed; as to the second, that it is not supported by the record, it appearing therefrom that the court in his charge did not assume as a fact that appellee had made such a tender, but, on the contrary, submitted to the jury, as an issue to be determined by them, whether he had made a tender or not; and, as to the third, that the jury found that appellants were partners. Said paragraphs of the charge is further attacked as erroneous because in it the court told the jury, on conditions stated, to find in favor of appellants interest on the sum due them for repairs, etc., by appellee, from said April 7, 1910. Appellants' complaint is that as a matter of law interest on the sum due them by appellee did not begin to accrue until January 1st following said April 7, 1910. Obviously, if the instruction was erroneous as claimed, the error was in appellants' favor, and therefore not one of which they have a right to complain.
Other objections, but none of them more meritorious than those above referred to, are urged to the judgment. The assignments presenting them are overruled.
The Judgment is affirmed. *1074