Woytek v. King

. BRADY, J. Appellees sued appellant upon a written contract to recover the price of certain beer bottles, shipped and delivered by them to' appellant. It was alleged that the written contract had been modified by parol, so that appellees might ship less than a carload lot, and that such bottles should be consigned to the Consumers’ Beverage Company, at New Orleans, La., with stop-over privileges at Waco, Tex. The purpose of the stop-over was to enable appellant to fill the car with other bottles, for shipment to New Orleans. On appearance day, which was January 7, 1919, the appellant had filed no answer, and an interlocutory judgment by default was rendered 'against him. No military affidavit had then been filed by appellees, and at the time appellant was served with citation, and until after appearance day, he was sick with influenza. Appellant filed an answer on January 9th, and on January 31st evidence was heard on the writ of inquiry, and final judgment rendered for appellees. On this day, and prior to the taking of the final judgment, appellees filed an affidavit, showing that appellant was not in military service, and was not on the 7th day of January. [1] It is claimed that the trial court should have set aside the default judgment, rendered January 7, 1919, because appellant was sick in bed with influenza, and was unconscious .when the citation was served upon him. The trial court found that when served with citation, appellant was confined to his room, but that he was sitting up, dressed in his street clothes, and had a lengthy conversation with the officer serving the writ; that he had a very efficient business manager, who called at his room frequently during the period between the service of citation and the call of the case, and who could have attended to the matter of having answer filed. 1-Iis conclusion of law upon this point was that the defendant did not exercise due diligence’in filing an answer, and that appellees were entitled to judgment by default against him. In this state of the record, we con- *1082 elude that there was no error In overruling the motion to set aside the judgment by default. [2, 3] The claim is also made that the trial court erred in not setting aside the judgment by default, because appellant showed a meritorious defense by his pleadings. The court found facts, not necessary to be here recited in detail, inconsistent with appellant’s defense as pleaded in his answer. He further expressly concluded that appellant did not have a meritorious defense to appellee’s cause of action. There is no statement of facts, and we must presume that the evidence justified these findings. Furthermore, if the conclusion of the trial court is not properly dedueible from the facts set forth in his findings of fact, it will be presumed to have been established by other competent testimony given on the trial of the case. Jarrell v. Sproles, 20 Tex. Civ. App. 387, 49 S. W. 904. For these reasons, the first and second assignments are overruled. [4] The third assignment of error complains of the action of the trial court in rendering judgment for interest at the rate of 10 per cent, per annum. Appellees concede that this assignment is well taken, but we agree with them that the error will not necessitate a reversal of the case, but that the judgment should be reformed and made to draw the statutory rate of 6 per cent. [5] It is next claimed that the default judgment was improperly rendered, because appellees had not filed an affidavit, stating that appellant was not in the military service of the United States. In this connection, the trial court found that appellees did file such an affidavit on the 31st day of January, before the final judgment was rendered, and also, expressly found that the defendant had never been in the military service of the United States. Appellant relies upon section 3078¼½>, art. 2, U. S. Compiled Statutes 1918, p. 418. We are of the opinion that there was a substantial compliance with the federal statute, and that no reversible error is shown in this particular, especially as the court found that the appellant was never in the military service, and no contention is here made that he was in such service. Therefore the assignments raising this question are overruled. [6] The only remaining contention is that the court erred in rendering judgment for appellees, because appellant was only required to pay for such bottles as were delivered unbroken, and that the evidence does not show the number of unbroken bottles that were delivered to the consignee, but that the trial court erroneously concluded that all of the bottles were delivered in good condition, because no complaint had been’ made by the consignee as to breakage. We are of the opinion that the trial court’s findings of fact’aré conclusive upon this question. The finding was made that appellees loaded 918 dozen bottles in a ear, f. o. b. McGregor, at McGregor, Tex., shipped them as directed, and delivered bill of lading to appellant; that appellant received the car of bottles at Waco, Tex., in good condition, opened the car, and completed filling it with bottles, and shipped it to New Orleans. He further found that, although over eight months had elapsed, no complaint had- been made by either appellant or the consignee that any of the bottles were broken in transit. The court concluded that, in view of these facts, the bottles were delivered to defendant in good condition. We think the facts so found were sufficient to make a prima facie case of delivery according to the contract. Moreover, in accordance with the rule laid down in the case of Jarrell v. Sproles, supra, we must presume that if the facts recited are insufficient to justify the conclusion, it was warranted by other facts proven ,by competent testimony on the trial. [7] No reversible error has been shown, but the judgment will be reformed so as to bear interest at the rate of 6 per cent, per annum from the date of its rendition, and as so reformed will be affirmed. The costs of this appeal will be taxed against the appel-lees. Reformed and affirmed.