Hill v. Belnoski , 42 S.W.2d 856 ( 1931 )

On Rehearing.

Appellant asserts that we erred in bolding that be has no proposition directing our attention to any specific issue raised by tbe pleadings and testimony, not covered by tbe trial court’s main charge. His propositions, pertinent to this assignment, with their accompanying statements, are as follows:

“Twenty-First Proposition. When a cause of action is submitted to tbe jury on special issues, all tbe issues of fact made by tbe pleadings must be submitted and determined by them before final judgment.” Tbe statement made under this proposition consists of an analysis of tlie petition and of the three first issues submitted by the charge. In this statement appellant does not direct our attention to any specific issue not covered by the charge.

“Twenty-Second Proposition. Where a material issue is raised, both by the pleadings and by the evidence, it becomes an issue of fact for the jury to determine under proper instructions.” The statement under • this proposition is as follows: “The plaintiff pleaded and proved that the defendant agreed to divide the profits derived from the sale of the property here sued upon the defendant denied, both in his pleadings and in his testimony that he ever promised anything to the plaintiff (appellee) with reference to this particular tract.”

“Twenty-Third Proposition. Where the obligations of a contract are mutual and dependent, a party seeking to enforce it, or recover damages for a breach, must show that he has performed or offered to perform all its provisions on his part.” The statement under this proposition consists only of excerpts from the testimony of appellee.

We think this statement from the record satisfactorily answers appellant’s assignment.

The motion for rehearing is, therefore, in all things overruled.