Gavito v. Brooks

[752] COBBS, J. Appellee, A. L. Brooks, instituted this suit in the county court of Cameron county against appellants J. L. Gavito and G. M. Lozano, to recover the sum of $498.32, the value of certain goods, wares, and merchandise alleged to have been sold, upon an open account, by the Valley Wholesale Grocery Company, a corporation (which hereinafter for brevity will be referred to as “the company”), to J. L. Gavito, on or about March 17, 1921. It was alleged that the company was adjudged bankrupt May 22, 1922, the assets of the company sold, including the account sued on, and that appellee, A. L. Brooks, bought said assets and the account sued on. ■ It was alleged that about April 6, 1922, said J. L. Gavito sold his business to his codefendant, G. M. Lozano, without complying with the Bulk gales Law, and thereby said G. M. Lozano became also liable for said account to the company. It was also alleged that “the defendant (J. L. Gavito) then and there promised plaintiff (A. L. Brooks) to pay it the sum of money in said account specified,” that said account was past due, and the defendant had failed and refused to pay the same. Plaintiff’s amended petition did not set forth the items constituting the account sued on, but referred to the account as “Exhibit A, and made part hereof,” but said exhibit was not in fact attached to said petition; and there was no allegation in said petition that Ga-vito ever promised to pay the company said account. Defendant Gavito answered (a) by general demurrer, (b) by general denial, (c) pleaded payment to the company, (d) by special plea denying he ever bought said goods from the company, but that he received them from one O. A. Lasiter' in payment of certain stock sold by him to Lasiter under special contract; and (e) denied under oath the account as just or true in whole or in part. Defendant G. M. Lozano adopted the answer of his codefendant. To this plaintiff filed his first supplemental petition denying that Lasiter had authority for the company to enter into such contract or to issue merchandise in payment for said stock. The cause was submitted to a jury on special issues, and on the answer thereto judgment was rendered that appellee recover of J. L. Gavito and G. M. Lozano $348.32, and that Gavito recover of the defendant O. A. Lasiter the sum of $348.32, and that G. M. Lozano take nothing by his action. This appeal was prosecuted by. J. L. Gavito and G. M. Lozano. Appellants filed a motion for new trial, but the same was never presented to or acted upon by the court, but it was practically abandoned. There is no motion for new trial upon which to base assignments of error, and consequently' there are none in the record. This case having been tried before a jury, a motion for new trial was absolutely necessary upon which to predicate assignments of error based on insufficiency of the facts. Rev. Stats, art. 1612; Taylor v. Davis (Tex. Civ. App.) 234 S. W. 104; Railway v. McGown (Tex. Civ. App.) 239 S. W. 282. No fundamental error is apparent of record. The original opinion is withdrawn. The judgment is affirmed.