Danner v. Walker-Smith Co.

JENKINS, J. (after stating the facts as above), [t] 1. Appellees have filed a mo [298] tion to strike out appellants’ brief, alleging as grounds for said motion that the same was not filed in time for them to reply to the same. Without going into all of the details in reference to this matter, we think it sufficient to say that we do not think said motion should be sustained. Appellees’ attorneys were furnished with a typewritten copy of appellants’ brief on February 13, 1912, and at the same time appellants’ at-, torneys sent them the record in this case. On February 26th appellants filed their printed brief with the clerk of the district court of Brown county, and caused appellees’ attorneys to be served with a copy of same. Appellees’ attorneys returned said record to attorneys of appellants, alleging as their-reason that there was then pending a motion by appellants to perfect the record. The record was then sent to the clerk of this court by appellants, and the motion to perfect the record was granted. Appellees were delayed in getting the record from this court by reason of the fact that, when they applied for same, this court was using it in passing on the motion to perfect the record. Appellees have not filed a formal brief, but they have filed a written argument, which is, in effect, a brief. They have also argued this case orally before this court, and were then asked if they desired the case postponed, in order that they might have further time in which to prepare and file a brief, and replied that they did not. This case was submitted in this court April 10, 1912. If the rule requiring the appellant to file his brief in the trial court before the record was taken from said court was complied with, it would in all instances insure the ap-pellee full opportunity to prepare his brief before the ease was submitted in the appellate court. But appellate courts in this state have, for a long time, been so crowded with business that cases could not be submitted for a considerable length of time after the record was filed in the appellate court, in consequence of ■ which no injury, as a general rule, results from a relaxation of this rule. To dismiss a case because a brief has not been filed in time means a dismissal of the appeal without reference to the merits of the case; and we think it more in consonance with the administration of justice to give the appellant his day in this court, even though he has been tardy in filing his brief, if such delay has probably worked no injury to the appellee. Railway Co. v. Holden, 93 Tex. 212, 54 S. W. 751; Crenshaw v. Hempel, 130 S. W. 731. [2] 2. One of the contentions of appellant B. El. Millican in this case, which we think is well taken, is that no judgment by default was ever, in fact, rendered against him. We quote from the judgment rendered herein June 26, 1909, as follows: “This .case being regularly reached and called for trial, came the- plain tiff by attorney and the defendants E. H. Winans, M. B. Patterson, Eli Austin, A. K. Landers, H. W. Walton, A. J. Danner, W. B. Harrison, John J. Fry, J. A. Jenkins, Bat Austin, and D. C. Landers in person and by their attorneys of record, and announce ready for trial. The Robert Lee Mercantile Company, E. E. Millican, M. E. Trimble, and C. H. Millican came not, but wholly made default herein, and a jury having been- demanded,” etc. The court informed the jury that there was no issue between the plaintiff and the defendants Mil-lican and Trimble (they not having filed any answer herein), and peremptorily instructed them to find for plaintiff as against said defendants. The verdict of the jury was as follows: “We, the jury, find for plaintiff Walker-Smith & Co. and against defendant Robert Lee Mercantile Company for the sum of $7,288.71, with interest thereon from June 26,'1909, at the rate of 10 per cent, per annum; and we further find in favor of plaintiff and against Robert Lee Mercantile Company for the sum of $705 as attorney’s fees. We find in favor of the defendants B. H. Winans,.M. B. Patterson, Eli Austin, A. K. Landers, H. W. Walton, A. J. Dan-ner, W. M. Harrison, John J. Fry, and J. A. Jenkins. We also find in favor of plaintiff and against defendants E. E. Millican and M. E. Trimble for the sum of $7,288.71.” The judgment of the court is as follows: “It is therefore by the court upon said verdict considered, ordered, adjudged, and decreed that plaintiff Walker-Smith & Co. do have and recover of and from defendants the Robert Lee Mercantile Company, E. E. Mil-lican, and M. B. Trimble, jointly and severally, the sum of $7,288.71, with interest thereon,” etc. This judgment recites the fact that E. E. Millican came not, but wholly made default, which fact, together with the further fact that he had been duly cited, would have authorized an interlocutory judgment by default against him, but no such judgment was rendered. “A judgment is the affirmation by law of the legal consequences attending a proved or admitted state of facts. * * * We may therefore define a judgment as the determination or sentence of the law pronounced by a competent judge or' court as the result of an action or proceeding instituted in such court, affirming that upon the matters submitted for its decision a legal duty or liability does or does not exist.” Black on Judgments, § 1. The record herein does not state any legal consequence to flow from the stated fact that Millican made default. It does not fix any legal liability, predicated upon said fact. There was a judgment rendered by the court against Millican, but, as above shown, it was predicated upon the verdict of the jury, and was not an interlocutory, but a final, judgment. [3] 3. The appellee Walker-Smith Company filed a motion to set aside the verdict of the jury and the judgment thereon, referred to in the preceding paragraph of this [299] opinion, in so far as the same was in favor of the defendants Winans, Patterson, Austin, Landers, Walton, Danner, Harrison, Fry, and Jenkins. Said motion was by the court granted and said verdict and judgment as to said parties was set aside, as appears by the recitals in the judgment of the court on said motion. The effect of this order of the court setting aside the judgment as to the parties named was to set aside and vacate the entire judgment. There can be but one final judgment in a ease. Long v. Garnett, 45 Tex. 401; Wootters v. Kauffman, 67 Tex. 488, 3 S. W. 465; Railway Co. v. James, 73 Tex. 19, 10 S. W. 744, 15 Am. St. Rep. 743; Parker v. Adams, 23 S. W. 902; Parker v. Stephens, 48 S. W. 878. 4. Our holding upon the issues above stated renders it unnecessary for us to pass upon the assignments based upon the refusal of the court to set aside the judgment by default. There was no judgment by default to be set aside. It follows from what we have stated above that the court erred in striking out the defendant Millican’s plea of non est factum; and it also follows that the court will not, upon another trial of this cause, instruct the jury to find that Mil-lican signed his name to the contract of guaranty sued upon. That will be an issue of fact, the same as to the other defendants, to be determined by the jury. [4] 5. There was no error in the court’s charging the jury to find that M. E. Trimble signed the contract of guaranty sued upon, inasmuch as Trimble not only did not file an answer, but testified in this case that he signed the contract of guaranty. There was no evidence to the contrary, and it was proper for the court to assume that fact. The evidence as to Trimble’s statement about having signed said contract was admitted, not. for the purpose of proving that he did so, but to impeach his testimony, which was material as to matters affecting the other defendants. 6. This case was submitted upon special issues. The appellants requested the court to submit the following special issue: “How much goods, wares, and merchandise were sold and delivered to the Robert Lee Mercantile Company by Walker-Smith Company, and the value of the same, after October 9, 1907?” The contract sued upon was in part as follows: “Brownwood, Texas, October 9th, 1907. For value received, I, we or either of us hereby guaranty the Walker-Smith Company, its successors or assigns, the payment of all sums that Robert Lee Mercantile Company are now indebted to it, and that they may hereafter become indebted to it for goods, wares and merchandise hereafter sold to them by said Walker-Smith Company, at any time before written notice is by us delivered to said Walkej>Smith Company not to further sell on this guaranty; and we bind ourselves and promise to see all indebtedness finally and fully paid when the same becomes due. * * * The principal of said indebtedness, however, for which we are to be bound shall not exceed $10,000.00 at any one time.” The issue raised by the assignment upon the refusal of the court to give this special charge is involved in several other assignments of error. We hold that said special charge should have been given; and also that the notes sued on were not evidence against the appellants, but that it was incumbent upon Walker-Smith Company to show that the indebtedness for which appellants are sought to 'be held, accruing subsequent to October 9, 1907, arose from the sale of goods, wares, and merchandise to the Robert Lee Mercantile Company by said Walker-Smith Company, and also the value of such goods. [5] 7. We do not think the court erred in permitting the witness W. J. McFarland, who was the manager of the Robert Lee Mercantile Company, to testify that said company was indebted to Walker-Smith Company at the time of the execution of the note sued on in the sum of $9,500. Such testimony was not the statement of an opinion' but of a fact within the knowledge of said witness. Of course, this testimony did not relieve Walker-Smith Company from the burden of proving that so much of said indebtedness as accrued subsequent to October 9, 1907, was for goods, wares, and merchandise sold to said Mercantile Company. [6] 8. Appellants assign error upon the following portion of the court’s charge: “If from the evidence in this case you believe that any defendant or defendants signed the contract of guaranty sued upon, then you should so find, even though you believe that said-party or parties thought the instrument signed was merely a recommendation of the Robert Lee Mercantile Company or other paper.” It is not contended by appellants that this is not a sound proposition of law, but their contention is that they did not plead nor attempt to prove that they signed the alleged contract of guaranty’ under the impression that they were signing some other instrument. They testified that they did sign another instrument, but that it was merely a recommendation as to the Mercantile Company, and not a contract of guaranty. If this fact appears from legitimate testimony, it was not error for the court to charge as above. 9. We think the court erred in permitting the witness W. H. Walton to testify over objection of defendants that he signed a letter of recommendation at the instance of W. J. McFarland for the Robert Lee Mercantile Company, as being composed of good honest men, and suitable to sell goods to; and also in permitting the witness Landers to testify that he signed a blank piece of paper on the statement of McFarland that he wanted to get up a list of names; some 10 or 12 of his [300] best customers, to sell goods to drought-stricken people in that country, said blank paper being in a memorandum book; and also in permitting the witness Walton to testify that he signed a note as surety for the Robert Lee Mercantile Company for $1,000 in the summer of 190T. These witnesses, who were also defendants in the ease, might have been perfectly willing to sign recommendations for said Mercantile Company, or even (as in the case of Walton) to sign a $1,000 note, when they would not have ‘been willing to sign a guaranty contract in the succeeding fall for the sum of $10,000, and we do not think that these facts proven by them were legitimate circumstances from which to infer that they did sign said guaranty contract. [7] 10. The jury found that the alleged guaranty contract was not signed by E. H. Winans, and that as to him the same was a forgery. It is the contention of the appellants that this renders the contract void as to all of the other parties. Had Walker-Smith & Co. been in any wise connected with such forgery, said instrument would have been void as to all parties; but as they were not so connected, and as the instrument was a j'oint and several obligation, and it is not claimed by either of the appellants that he signed it upon the faith of the same having been signed or that it would be signed by any of the other appellants, we hold that such of the parties, if any, who signed said instrument, are liable thereon, notwithstanding the fact that the same was forged as to one or more of the other parties. [8] 11. We do not think that the contention that the appellants are not bound upon said contract for the reason that the same was not accepted by Walker-Smith Company is sound. Said contract was delivered to WalkerrSmith Company by the Robert Lee Mercantile Company, and, if they acted upon the same and sold goods upon the strength of the same, this amounts to an acceptance of said guaranty contract by them. [9] 12. There was no error in permitting appellees to prove by A. J: Danner, one of the defendants in said cause, that one of his attorneys had read over to him his deposition given in this case. The ground of said obj'ection is that it was disclosing a communication between attorney and client. While an attorney is forbidden to disclose the affairs of his client, we know of no rule of law which forbids a party to prove upon the cross-examination of his opponent any statement which he may have made about the ease, if otherwise admissible, regardless of whether he made it to his attorney ‘or some one else. This evidence does not involve the statement of any fact communicated by Danner to his attorney, nor of any fact communicated by the attorney to Danner; but simply shows that Danner’s memory had been refreshed as to his former statement by hearing his deposition read over j'ust before he testified in this case. It was wholly immaterial whether said deposition was read to him by his attorney, or by some other person, or that he read it himself. There is no complaint as to the j'udgment against Robert Lee Mercantile Company and M. E.. Trimble, nor as to the judgment in favor of E. H. Winans, Bat Austin, and D. C. Landers, and, as to them, the judgment of the trial court is affirmed. Eor the errors above indicated, the judgment of the trial court herein as to A. K. Landers, Harrison, the Millicans, Walton, Danner, Eli Austin, Pry, .Tenkins, and Patterson is reversed, and this case remanded for a new trial. Affirmed in part and in part reversed and remanded.