Pizzitola v. Jeffords

294 S.W. 284 | Tex. App. | 1927

The appellee, a produce dealer in California, contracted to sell and ship to appellant at Houston, Tex., a carload of lettuce. When the car arrived at Houston the appellant, after inspection, refused to receive and pay for it, on the ground that the lettuce was not up to the grade he had contracted for. Appellee sued and recovered a judgment for the sum of $204.50 as damages. The case was tried before the court without a jury.

On the last day of the term the appellant filed a motion asking the trial judge to file findings of fact and conclusions of law. That was not done, and the appellant presents the failure as a ground for reversing the judgment. The court thus qualifies the bill of exception presenting that question:

"I have no recollection of this motion for filing findings of fact and conclusions of law being ever called to my attention. It is my custom, when such motions are called to my attention, to immediately notify the prevailing attorneys to draft the findings and submit them to me. No such notice was given in this case."

From this it is to be inferred that the motion was not called to the attention of the court by counsel for appellant, and that no other request was made for the filing of findings of fact and conclusions of law. Article 2208 of the Revised Civil Statutes 1925, provides that upon a trial by the court the judge shall at the request of either party state in writing the conclusions of fact found by him separately from the conclusions of law. No formal motion for that purpose is required, and the trial judge should not be expected to examine his docket for such a motion, or take cognizance of one not called to his attention. McCallen et al. v. Mogul Producing Refining Co. (Tex.Civ.App.) 257 S.W. 918; Western Union Tel. Co. v. Trice (Tex.Civ.App.) 48 S.W. 770; Graham Refining Co. v. Graham Oil Syndicate (Tex.Civ.App.) 262 S.W. 142. Moreover, there is in this record a full statement of facts, to which the attorneys for both parties agreed. The testimony shows that there was practically but one issue of fact involved — was the lettuce shipped equal to the grade contracted for by the appellant? The testimony upon that issue was conflicting, but the judgment of the court necessarily involved a finding in favor of the appellee, and the testimony is amply sufficient to support that finding. The filing of findings of fact could not be of any special benefit to the appellant in the prosecution of this appeal.

We therefore conclude that no injury resulted, even if the court improperly refused to file findings of fact; and for that reason alone the assignment should be overruled. Barfield v. Emery, 107 Tex. 306,177 S.W. 952; Riley v. Austin, 112 Tex. 216, 245 S.W. 907.

The judgment is affirmed.