Western Union Telegraph Co. v. Verhalen , 1918 Tex. App. LEXIS 578 ( 1918 )

On Rehearing.

[3] The appellant insists that this court, instead of remanding the cause, should render judgment in its favor because the undisputed evidence shows that the stipulation as to giving notice of claim of damages is reasonable. Article 5714, referred to, really means that a stipulation in any contract requiring notice to be given of a claim for damages within a certain time shall not be valid and enforceable as a condition precedent to the right to sue where the time stipulated for the giving of the notice is unreasonably short, and that a less period of time than .90 days within which to give the notice should be, as a matter of law, an unreasonably short time for the performance of the stipulation. And what is a reasonable time is a question of law for the court when, in some particular case, the facts are undisputed and the inferences certain. This court, though, may not render a judgment in this record, because the pleading setting up the defense was stricken out by the trial court on demurrer, and, being stricken out, was not legally thereafter a part of the record or a defense. And after the pleading was stricken out the plaintiff was not legally called upon nor required to offer any evidence respecting such defense. For the statute provides that, “unless the want of notice is especially pleaded under oath,” then “it shall be presumed that notice was given.” And after the pleading-was stricken from the record there was no pleading under oath, as required, and the trial court was bound to give force to the statute. And this court ■ may only render the judgment the trial court could render. Mitchum v. Railway Co., 107 Tex. 34, 173 S. W. 878. The province of tins court is to hold, as we do, that the trial court erred in striking the pleading from the record ; and the effect of such ruling is to require the trial court to reinstate and restore the pleading, which is required to form the legal foundation of the proof to be submitted on the trial.

Motion overruled.