Opinion
No. 5633.
March 8, 1916. Rehearing Denied April 12, 1916.
Appeal from Bexar County Court for Civil Cases: John H. Clark, Judge.
Action by J. R. Crawford against the Progressive Oil Company and others. From judgment for plaintiff, defendants appeal. Affirmed.
J. T. Fly, of San Antonio, for appellants. Hicks, Hicks, Teagarden Dickson, of San Antonio, for appellee.
This is a suit, filed by J. R. Crawford on November 4, 1914, against the Progressive Oil Company, a corporation, Joe L. Hill, T. W. Woodruff, and R. M. Biard, upon a joint and several promissory note for $233.34, payable to the order of plaintiff, executed by said defendants, dated June 8, 1914, due September 8, 1914, bearing 8 per cent. interest, and providing for 10 per cent. attorney's fee. Defendants Hill and Woodruff answered and denied liability, alleging that there was never a delivery of said note by them or any one authorized by them to deliver the same; that they instructed Biard not to deliver the note to plaintiff unless a certain trade should be consummated, and that said trade was never made. They also contended that plaintiff, by threats of personal violence, forced Biard to deliver the note to him. Plaintiff joined issue on said allegations, and specially alleged that, even if Biard was not authorized to deliver such note, the same was delivered by him to plaintiff without any knowledge on the part of plaintiff that Biard was not authorized to deliver same, and that plaintiff received and accepted the same in settlement of an open account, then due him by the Progressive Oil Company, and agreed to forbear suing until the maturity of said note; that at the time he accepted the note he was threatening to sue said oil company, of which defendants Hill, Woodruff, and Biard were officers and owners of practically all the stock, and would have sued said company, which at that time owned assets out of which plaintiff could have collected his debt; that within three or four days after said note was delivered Biard informed Hill and Woodruff that he had delivered the same to plaintiff, and that plaintiff had accepted it in settlement of his open account against the company, and that said defendants acquiesced in the delivery thereof, and did not notify plaintiff until after the maturity of the note that it was delivered without authority; that plaintiff by such acts of defendants has been placed in a worse position than he was when he accepted the note, for the reason that, relying on the financial responsibility of the individuals who signed said note, he permitted defendants, as officers of the company, to dispose of all its assets, which they have done, and said company is now defunct.
The assignments of error are objected to because they are not copies of paragraphs of the motion for new trial. Without filing formal assignments of error, appellants have reconstructed, in their brief, their assignments contained in their motion for a new trial, making one assignment out of two or three paragraphs of said motion. This court has been very liberal in considering assignments which as printed in the briefs are substantial copies of those contained in the record, but we cannot permit new assignments to be formulated and printed in the brief without setting at naught rule No. 29 (142 S.W. xii) for the Courts of Civil Appeals. Horseman v. Colemal Co., 57 S.W. 304; Lakeside Irrigation Co. v. Buffington, 168 S.W. 21; Dewees v. Nicholson, 182 S.W. 396, decided by this court, but not yet officially reported; Overton v. Colored K. of P., 163 S.W. 1053.
The statements under the first two assignments are also insufficient. We must decline to consider any of the assignments. The issues are simple, and apparently all contentions sought to be made are without merit; but were we to consider the assignments, we would set a precedent which could justly be invoked in future cases. The impression appears to prevail with many members of the bar, judging by the frequency with which we are confronted with similar assignments, that the enactment of the law, permitting the use of paragraphs of the motion for new trial as assignments of error, liberalized the practice to such extent as to make it permissible to reconstruct assignments out of such paragraphs, and, without filing the same as formal assignments, print such new assignments in the brief. As rule 29 has not been repealed, there is no ground for such impression.
There being no fundamental error apparent, the judgment will be affirmed. FLY, C.J., entered his disqualification and did not sit in this case.