
    CITY GROCERY CO. v. MOORE GROCERY CO.
    No. 3563.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1939.
    Rehearing Denied Dec. 20, 1939.
    Adams & McAlister, of Nacogdoches, for appellant.
    Ramsey & Ramsey, of San Augustine, and Butler & Price, of Tyler, for appellee.
   WALKER, Chief Justice.

The controlling facts in this case are decided in our opinion, Parker et al. v. Moore Grocery Company, Inc., Tex.Civ.App., 107 S.W.2d 1083, 1084, reversing the judgment of the lower court entered on an instructed verdict, on the ground that F. K. Parker’s authority to execute the note “was a question of fact for the jury.” On return of the mandate, appellee dismissed its cause of action on the docket of the district court, and filed this suit in the ■county court of San Augustine county upon the note and letter set out in our opinion cited above. On trial to a jury, judgment was again entered in favor of appel-lee on an instructed verdict. Again we must say that the authority of F. K. Parker to execute the note and letter was a fact Issue for the jury.

By a plea in abatement, appellants allege that at 'the time appellee dismissed its suit on the docket of the district court there was pending in answer to appellee’s ■cause of action appellants’ cross action, -putting in issue the facts in controversy in this case, and their liability to appellee. .Appellants’ proof did not sustain their plea in abatement. That issue can be developed further on another trial.

For the reasons stated, the judgment of the lower court is reversed and remanded.  