
    DIXON v. HAYMES et al.
    (No. 7466/7851.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1920.
    On Motion for Rehearing, April 8, 1920.)
    1. Appeal and error <&wkey;722(l) — Assignment not corresponding with motion for new tria! not considered.
    Where the motion for new trial assigned error, on the ground that the verdict was against the evidence, was vague, and was in conflict with the testimony, an assignment of error on appeal that it was the duty of the trial court to instruct the jury in writing will not be considered, for the assignment does not comply with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, requiring the filing of a motion for new trial, and declaring that the assignments therein shall constitute the assignments of error on appeal.
    2. Appeal and error <&wkey;730(I) — Assignment containing nothing on which proposition can be founded must be overruled.
    An assignment of error that a court of record should instruct the jury contains nothing on which a proposition of law can be based, and cannot be considered.
    3. Appeal and error <&wkey;699(l) — Assignment that court erred in not charging the law of the case will not be considered.
    While the statutes require the court to charge the jury in writing as to the law of the case, unless such instructions are waived, an assignment of error, merely reciting that it was the duty of the court to instruct the jury as to the law of the case, etc., must be overruled, where there was nothing in the record to show that instructions were not waived.
    Appeal from Wharton County Court; W. G. Davis, Judge.
    Action by George Raun against T. L. Haymes and W. N. Dixon. From a judgment in favor of defendant Haymes, who filed cross-action against defendant Dixon, the latter appeals.
    Reversed and rendered.
    W. L. Hall, of Wharton,, and Townsend & Quin, of Columbus, for appellant.
   LANE, J.

This suit was brought by George Raun, one of the appellees herein, against the other appellee, T. L. Haymes, and appellant, W. N. Dixon, to recover the stun of 1$342.75, alleged to be balance due him for threshing 2,285 sacks of rice, the property of defendants, at 60 cents per sack. He alleged that Haymes and Dixon had jointly contracted with him for such threshing, and that he had performed his part of said contract; that the sum due therefor was $1,371; that Haymes and Dixon had paid him $1,028.-25, and there was still due and unpaid of such sum a balance of $342.75, for which he sues.

The defendant Dixon, appellant herein, answered by general denial, but by special plea admits the execution of the contract between himself and defendant Haymes, which reads as follows:

“This contract and agreement, made and entered into by and between W. N. Dixon, hereinafter known as first party, and Thomas L. Haymes, hereinafter known as second party, both of the county of Wharton and state of Texas, witnesseth:
“That first party hereby leases and demises unto second party, for the term beginning the 15th day of October, 1917, and ending on the 1st day of December, 1918 (granting herein to second party the privilege to retain said premises, or such portions of said premises as agreed upon by both parties), for a term of three years, upon same terms and conditions as hereinafter set forth, if desired by second party, the following described lands: About one hundred and fifty acres of land on the W. N. Dixon farm about 8 miles west of Garwood, Texas, together with the pumping plant and such buildings as agreed upon by both parties— upon the following terms and conditions:
“First party hereby agrees to furnish the land; furnish the water; furnish the engine (and keep said engine in good running order at all times); furnish the fuel at Garwood, Texas; furnish the seed rice; furnish one-half of sacks; to pay one-half of threshing expense, or furnish the separator and one man; to pay one-half of expense of placing said crop in warehouse at Garwood, Texas.
Second party hereby agrees to furnish and provide all of the teams, farming implements, and all labor necessary to prepare, plant, irrigate, harvest, and thresh about 150 acres of rice to be grown upon said premises during the term of this lease, and to farm said rice crop in first-class and farmerlike manner and in proper season therefor; to furnish all the twine; furnish a competent man to run the engine; to haul all the fuel; to do necessary plowing in building any new levees (first party to pay for the surveying); to pay first party, as rental for said premises, one-half of all the rice raised during the term of this lease; said rice crop to be sacked in good sacks, properly sewed up, and all sacks to be of like character and quality as that retained by second party, and all rentals belonging to first party shall be delivered to market at Garwood, Texas, by second party (first party paying one-half of the expense of delivery); to keep pump running night and day when water is needed during the pumping season. * * *”

Further pleading, defendant Dixon says that he paid plaintiff, Raun, the sum of $342.75, which was all he had contracted to pay, and therefore he should he discharged, with his costs.

Defendant Haymes answered, admitting the truth of the allegations of plaintiff’s petition, and by cross-action against appellant, Dixon, alleged that he entered into a written contract with the defendant W. N. Dixon, under the terms of which said rice was raised, harvested, and threshed, and that in said contract the said Dixon obligated and bound himself to pay one-half of the threshing expense of said crop (defendant' attached to his answer 'and marked “Exhibit A” a copy of the contract entered into by him with the said W. N. Dixon); that in conformity with his agreement with the plaintiff, George Raun, and in pursuance of his contract with defendant Dixon, he paid to the plaintiff one-half of the threshing expenses of said rice, to wit, the sum of $685.50, which was the amount due plaintiff by defendant, and that the balance of said threshing expenses, $342.75, was due and owing to plaintiff by the defendant W. N. Dixon; that in the event plaintiff should recover judgment against him and the defendant Dixon, either jointly or severally, he says that he is entitled to a judgment over and against the defendant Dixon for such an amount as plaintiff should recover in this case, together with his costs.

Answering to the cross-action of defendant Haymes, appellant averred that in the payment of the $342.75 to Raun he fully performed his part of the obligation created by the contract between Haymes and said Raun, and that therefore defendant Haymes should not be permitted to recover against him in his cross-action.

The cause was submitted to a jury, so far as shown by the record, without instructions. The jury returned the following general verdict:

“We, the jury, find for the plaintiff, George Raun, against defendant T. L. Haymes, $342.-75, and in favor of defendant T. L. Haymes and against defendant W. N. Dixon, $342.75.”

Upon this verdict the court rendered judgment in favor of plaintiff, Raun, against defendant Haymes, for the sum of $342.75, and a judgment in favor of Haymes against appellant Dixon for the same sum. Erom this judgment against him Dixon has appealed.

Appellant’s first assignment is as follows:

“In a case tried in a court of record, it is the duty of the trial court to instruct the jury, in writing or otherwise, what their verdict should be.”

This matter was not copied from the motion for new trial, nor any other part of the record. It contains nothing upon which) a proposition of law can be founded. It does not meet the requirements of either the law or the rules prescribed for the Courts of Civil Appeals, and cannot be considered. It is provided by law that in all cases where the law requires the filing of a motion for new trial, or where such motion is in fact filed, the assignments therein shall constitute the assignments of error on appeal. Vernon’s Sayles’ Civil Statutes 1914, art. 1612; Nations v. Miller, 212 S. W. 742; Harlan v. Acme San. Flooring Co., 203 S. W. 412, and authorities therein cited; City of Sweetwater v. Biard Dev. Co., 203 S. W. 801; rule 29 (142 S. W. xii).

When we look to the motion for new trial we find that the first three assignments therein are as follows:

“First. Because the verdict of said jury is contrary to the evidence and all the evidence adduced upon the trial of said cause.
“Second. Because said verdict is vague, uncertain, and indefinite to such an extent that no valid judgment can be entered thereon.
“Third. That said verdict is contrary to and wholly unsupported and in conflict with the testimony adduced upon the trial of said cause.”

None of these, nor any other assignment in said motion, can be said to even remotely resemble assignment No. 1 in appellant’s brief and set out herein.

We also refuse to consider the second assignment, for the same reasons assigned for not considering assignment No. 1.

The third and last assignment is as follows:

“A trial court is required under the law to char'ge the jury in writing as to the law governing the particular case tried.”

It is apparent that this assignment is not the third assignment found in the motion for new trial, nor is it similar to any other assignment in the motion, and for this reason should not be considered; but, should we consider the same, we would overrule it. While it is provided by our statute law that the court should instruct the jury in writing as to the law governing the' case, unless such instructions are waived by the parties to the suit, there is nothing in the record to show that such instructions were not given, except that the same does not appear in the record, nor is there anything in the entire record to show that such instructions were not waived. It is true that there appears in the record a bill of exceptions, in which it is insisted that the court erred in refusing to grant appellant’s motion for new trial, because the court failed to charge the jury in writing. But if it be conceded, as perhaps it must be, that the court did not charge the jury in writing; still there is nothing to show that such instructions were not waived by all parties to the suit. If such instructions were so waived, it was not error in the court to fail to give same.

In view of what has been said, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

In the original opinion we held there'was no assignment of error in appellant’s brief which properly raised the question of the want of evidence to support the judgment of the trial court, and for that reason we refused to pass on that question. Appellant has filed his motion for rehearing, and insists therein that the second assignment in his brief was sufficient to raise the issue.

After a review of the second assignment, we have concluded to consider the same, and after a careful examination of the facts, and all the facts proven, we have reached the conclusion that such facts are wholly insufficient to support the judgment rendered in favor of Haymes against Dixon. We therefore grant the motion for rehearing, and now set aside so much of our former judgment as affirmed that portion of the judgment of the trial court above mentioned, and it is now ordered that so much of the judgment of the trial court as is in favor of T. L. Haymes against W. N. Dixon be reversed, and that judgment be here rendered for appellant, Dixon. 
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