Booth Lumber & Loan Co. v. Bucy

298 S.W. 923

Opinion

HIGGINS, J.

The finding of the jury upon issue 4, supplemented by the court’s findings, supports the judgment. These facts do not show a collateral promise to pay the debt of Davis, but an original promise by appellant to pay same, supported by an independent valuable consideration. Therefore the statute of frauds has no application. The supplemental’petition alleges a valuable con sideration and the evidence supports the same.

The new matter contained in the supplemental petition as a basis of recovery-should have been sent up by an amended original petition. Upon exception it should have been stricken from the supplemental petition. No such exception was filed and no objection made to the submission of issue 4. In this condition of the record, and no prejudice appearing, the irregularity of the manner in which the pleadings present the issues affords no ground for reversal. Bank v. Tyler (Tex. Civ. App.) 250 S. W. 742; O’Neil v. O’Neil (Tex. Civ. App.) 258 S. W. 591; Railway v. Midland Mercantile Co. (Tex. Civ. App.) 216 S. W. 627.

Booth, as president of appellant, had implied authority to make the contract in its behalf.

The tenth proposition is not raised by assignment and, in any event, is without merit because it is based upon a misconception of the effect of the evidence and not supported by any plea of payment.

Affirmed.