Wm. Cameron &. Co. v. Bassel

KEY, C. J. Wm. Cameron & Co. brought this suit against Neal Bassel, as contractor, and Fidelity & Deposit Company of Maryland, as his surety, for the value of certain materials furnished by the plaintiff to Bas-sel, and used by him in making certain improvements in the city of Belton, under six written contracts, entered into between Bas-sel and said city, and each bearing date May 14,1921. Among other things, the defendants filed pleas in abatement, alleging that the suit was prematurely brought, on account of an agreement between the parties, to the effect that the debt should not becoihe due until January 1, 1923. The court submitted the case to a jury upon special issues, and, in answering the first issue, the jury found that the agreement just referred to was made, to the effect that the debt would not become due until January 1, 1923. The trial occurred March 30, 1922. The jury answered all the other special *1082 issues, except No. 2, which read as follows: “Did the defendant Bassel pay A. G. Bauer, for plaintiff, the sum of $2,100 in cash?” As to that issue, the jury disagreed, and after discharging them the trial court entered judgment sustaining the plea in abatement, and dismissing the plaintiff’s case. The plaintiff has appealed, but does not complain that the finding of the jury to the effect that the debt would not be due until January 1, 1923, was not supported by testimony; but assign other grounds for a-reversal. We hold that the trial court pursued the proper course, and rendered the proper judgment, .regardless of what the jury found on other issues, and regardless of the fact that they failed to agree upon one of the issues submitted to them. Finding that the debt was not due rendered it manifest that the suit was prematurely brought, and the only proper thing for the court to do was to abate the suit. The judgment that was rendered did not prevent the plaintiff from suing the defendants at any time after the 1st day of January, 1923; and therefore it would seem that the appeal now involves nothing except the question of costs. We hold that the trial court rendered the proper judgment, and therefore the costs of the court below and of this court are properly taxable against the appellant. No error has been shown, and the judgment is affirmed. Affirmed. BLAIR, J., did not participate in the decision of this case.