Roberts v. J. B. Colt Co. , 31 S.W.2d 196 ( 1930 )

In the majority opinion it is said: "There was no necessity to submit any issues on the cause of action alleged by appellee, because there was no issue of fact as to the execution of the notes or as to the credits to which same were entitled. No objections whatever were filed to the court's charge, and no bills of exceptions appear in the record."

It is stated that the defense pleaded was in the nature of a cross-action for breach of warranty, and that "the execution of the notes was admitted," The record shows, however, that the defendant pleaded a general denial, and the admission that defendant executed the notes following same was not an essential allegation of the cross-action, but of a defensive plea of partial failure of consideration. The admission is therefore, I think, insufficient to constitute an admission of record by the pleadings dispensing with the necessity of plaintiff making proof of the fact that it was the holder and owner of the note. It therefore appears that we have before us a judgment in a case tried by jury upon special issues, wherein the verdict contains no finding upon any issue tendered by plaintiff's petition, and joined by defendant's general denial.

In Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391, it was declared to be the law at that time that, when a case was submitted to a jury upon special issues, it was necessary, in order to support the judgment, that the verdict contain a finding on every issue made by the pleadings. The Supreme Court then considered that any judgment not supported by such a verdict was erroneous and required a reversal, a result at the time deplored, and as to which recommendations were made to the Legislature. In response, the Legislature enacted, in 1897, present R.S. 1925, art. 2190, which made no change in the policy requiring that a verdict find all facts made issues by the pleading, but provided a method by which a finding upon some issues might be presumed when it appeared that same was supported by the evidence. The statute, however, has been held inapplicable to independent grounds of recovery or of defense. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084. The statute has likewise been so construed that it will not supply by presumption omitted issues as against one whose adversary alone was interested in establishing such issues. Turner v. M., K. T. Ry. Co. (Tex.Civ.App.) 177 S.W. 204; Christian v. Dunavent (Tex.Civ.App.)232 S.W. 875; Alexander v. Good Marble Tile Co. (Tex.Civ.App.)4 S.W.2d 636.

From these considerations it becomes necessary to inquire if the omitted issues in this case upon which the judgment necessarily rests are such as are supplied by the presumptions provided for in article 2190. To state the problem is practically to answer it. The appellant was not interested in a finding that J. B. Colt Company was the owner of the notes, or that appellant executed same as alleged. As to those matters, the burden of establishing same was upon appellee. They were issues made by the pleadings. Article 2190 requires "all the issues made by the pleadings" to be submitted. They were not submitted and not requested to be submitted, but, being an independent ground of recovery, and involving issues in which appellant was not interested in establishing, they are not presumed to have been found so as to support the judgment against him, but, on the contrary, are presumed to have been waived. Ormsby v. Ratcliffe, supra. Upon the face of the record, then, I think the verdict is insufficient to support the judgment, and, the cause should be reversed and remanded. Cisco Bldg. Loan Ass'n v. Mason (Tex.Civ.App.) 12 S.W.2d 1106. If appellee had cross-assigned error to the action of the court in refusing a request for a peremptory instruction to the jury to find the omitted issues in favor of appellee, then it would affirmatively appear from the record that appellee had not waived such issues, and the error of the court in resting its judgment upon an insufficient verdict court be treated as harmless. Fant v. Sullivan (Tex.Civ.App.) 152 S.W. 515.

The writer will not enter into an extended argument supporting this view, but will refer to dissenting opinion this day rendered in the case of J. F. Livezey v. Putnam Supply Company (Tex.Civ.App.) 30 S.W.2d 902, for a more detailed discussion.

In expressing no further dissent to the opinion of the majority, the writer does not wish to be understood as assenting to any proposition that it is ever permissible for a plaintiff in a suit to enforce a contract, to allege one contract and recover upon proof of another. It is not believed that the contract alleged in this case is so materially and certainly different from the one in evidence as to be governed as a question of law by the principle stated.