Browne v. Fechner

MOURSUND, J. R. H. Feehner and C. W. Rzeppa sued W. W. Browne upon a promissory note for $641.03, executed by the latter, payable to the order of Tewes & Richter, dated June 2, 1910, due September 1, 1911, bear462 lug 8 per cent, interest, and providing for attorney’s fees. It was alleged that said note was given hy Browne in payment for goods bought by him from Tewes & Richter prior to January 1, 1910; that at the time said goods were bought the firm of Tewes & Richter was composed of Ed Tewes, L. W. Stieren, O. W. Rzeppa, and R. H. Fechner; that such firm was dissolved January 1, 1910, but by mutual consent remained the joint owners and holders of the claims due said firm prior to January 1, 1910, and therefore became the joint owners and holders of said note; that on or about November 17, 1911, said Ed Tewes and L. W. Stieren transferred all their interest in said note to the plaintiffs ; that the note was unpaid except to the extent of $132.60, paid July 1, 1910. Browne answered, with a general denial, and a plea of payment, containing substantially the following allegations: That it was understood and agreed at the time the note was given and thereafter during the cotton season of 1910, which lasted from about August 1, 1910, to December 1, 1910, by9and between defendant and the firm of Tewes & Richter, said firm acting through L. W. Stieren, a member thereof, that for all cotton sold by defendant to Karnes City Ginning & Milling Company during said season the price to be paid for said cotton should be credited on the note sued upon, or upon whatever indebtedness was owing to said firm by defendant, for open account or otherwise; that defendant sold to said gin company, and delivered the gin slips to Tewes & Richter to be credited to defendant’s account, during said cotton season, more than enough cotton to pay said firm all that was owing to them by defendant, whether on said note or upon open account, but that he was not given credit for said amounts; that he paid said firm $120 cash during said season; that defendant did not know who composed the firm of Tewes & Richter during the cotton selling season of 1910, or on June 2, 1910, or at the time of filing answer, and therefore prayed that the firm of Tewes & Richter be made a party defendant, and that citation issue for said firm, and if plaintiffs recovered any judgment against defendant, then that defendant have judgment for the same amount over against the firm of Tewes & Richter. Ed Tewes, L. W. Stieren, E. H. Schmuck, and O. H. Porter, composing the firm of Tewes & Richter on December 4, 1912, answered by a special exception, and a general denial. Plaintiff filed a supplemental petition, denying all allegations of defendant Browne’s answer, and also filed a trial amendment alleging that Tewes & Stieren had transferred all their interest in the note to Fechner alone, instead of Fechner & Rzeppa, as alleged in their original petition. Upon trial the jury returned the following verdict: “We, the jury, find a verdict in favor of the plaintiffs, R. H. Fechner and C. W. Rzeppa, and against W. W. Browne, defendant, for the amount of the note, less credit, with interest at 8 per cent., and 10 per cent, additional attorney’s fees, making a total of $694.36.” Judgment was thereupon entered for plaintiffs against Browne, and that the defendants Tewes & Richter go hence without day. The judgment of the court is attacked by the first assignment, on the ground that the verdict made no disposition of the cause of action pleaded by Browne against Tewes & Richter, yet judgment was rendered in favor of said firm. The second assignment complains because the court accepted the verdict although same was insufficient, in not disposing of the issue between Browne and Tewes & Richter. The third assignment raises the same questions as the first and second. The verdict does not make any express finding on the cross-action filed by Browne against Tewes & Richter, and appellees, in support of the action of the court in rendering judgment disposing of all issues, say that the verdict necessarily constituted a finding against Browne on his action against Tewes & Richter. While the judgment must conform to the verdict, it is well settled that it need not literally follow the verdict, but must be rendered in accordance with the disposition of the issues in the case as made by the verdict. The pleadings and charge may be looked to in order to ascertain the meaning of the verdict; that is, the intention of the jury. The court instructed the jury, in substance, that if Browne executed the note, and ifiain-tiffs were the owners thereof, and it was unpaid, except $132.60, then to find for plaintiffs for the amount due on the note, including interest and attorney’s fees; that if they found that Browne paid the note, as alleged in his answer, to Tewes & Richter during the cotton season of 1910, and by paying $120 cash, then to find in favor of Browne; that if they found Browne did pay the note to Tewes & Richter and at the time of such payment it was owned and held by plaintiffs, then to find in favor of plaintiffs, and to further find for a like amount in favor of Browne over and against the firm of Tewes & Richter. The jury was required to return a verdict for Browne, if he paid the note to Tewes & Richter, unless at the time of payment plaintiffs were the owners of the note, in which event the jury was instructed to return a verdict for plaintiffs against Browne, and a verdict over for Browne against Tewes & Richter. The verdict was in favor of plaintiffs without any verdict over in favor of Browne. This we think must necessarily be construed as a finding that no payment was made to Tewes & Richter by Browne, because if such payment was made, and plaintiffs were not the owners of the note at the time, the jury was instructed to find for Browne, and if it was made at a time when plaintiffs owned the note, then [463] the jury was instructed to return a verdict over against Tewes & Richter in favor of Browne. The verdict is elaborate, and indicates that the jury fully understood the charge of the court, and scrupulously sought to follow the same. As such a verdict was authorized if the jury found no payment to Tewes & Richter was made, and was only authorized in such event, we must conclude that the jury either so found, or omitted, in express violation of the charge of the court, to find a judgment over in favor of Browne. There being nothing to indicate a violation of the instructions, we think the verdict must be construed as a finding by necessary implication that no payment was made of the note, and therefore that Browne was liable to plaintiff and had no cause of action against Tewes & Richter. The verdict disposes of the issues and the parties, and was sufficient to support the judgment. Fox v. Robbins, 70 S. W. 601; McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 g. W. 231; Rushing v. Lanier, 51 Tex. Civ. App. 278, 111 S. W. 1090; Pearce v. Bell, 21 Tex. 692; Railway v. James, 73 Tex. 18, 10 S. W. 744, 15 Am. St. Rep. 743; Jones v. Ford, 60 Tex. 131. No complaint is made of the charge, and we therefore assume it was satisfactory to appellant. There is no merit in the other assignments of error. The judgment is affirmed.