
    A. J. BIRDSONG & SON v. ALLEN et al.
    (No. 614.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 2, 1914.)
    1. Evidence (§ 230) — Admissibility—Letters.
    In an action for the conversion of cotton, which a chattel mortgagee claimed under a mortgage made by a landowner before he conveyed to defendants, a letter written by the landowner, explaining that he had sold the land and was renting from the grantee on shares, and that defendants were to take the first cotton, is admissible only against the writer.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.]
    2. Evidence (§ 589) — Weight — Sufficiency.
    The jury are not bound to accept the testimony of the parties to the cause.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. § 589.]
    3. Trial (§ 143) — Jury Question.
    Where the evidence as to an issue of fact is conflicting, the question is one for the jury. [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    4. Judgment (§§ 98, 310) — Defaulo>-Code-fendants — Amendment.
    Where one of the several defendants, though duly cited, made default, the court should have rendered judgment against him by default; hence the judgment for plaintiff was properly amended so as to include him, though the verdict failed to mention him.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §& 156-158, 601-603; Dec. Dig. §§ 98, 310.]
    5. Judgment (§ 314) —Verdicts —Amendments.
    Under the direct provisions of Rev. St. 1911, art. 2016, a judgment following the verdict may be amended in case of miscalculation, where it can be done by reference to the record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 610-612, 616; Dec. Dig. § 314.]
    Appeal from Jack County Court; J. P. Simpson, Judge.
    Action by W. V. Allen against A. J. Birdsong & Son and another begun in justice court. From a judgment for plaintiff, the named defendants appeal.
    Reversed and remanded.
    See, also, 165 S. W. 46.
    Sporer & McClure, of Jacksboro, for appellants. Fitzgerald & Cox, of Wichita Falls, for appellees.
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.
    
   HALL, J.

R. O. Wilson executed two notes to-W. V. Allen for $68 each and a mortgage upon two bales of cotton to be raised by him during the year 1912, to secure one of the notes. Thereafter Wilson sold the land, upon which the cotton described in the mortgage was to have been grown, to A. J. Birdsong & Son, and entered into a contract with Birdsong & Son for the cultivation of the land. According to the terms of this contract it is contended by the appellants that the relation of master and servant between Birdsong and Wilson existed, and because of such relation the chattel mortgage given by Wilson to Allen was destroyed. Allen instituted this suit in the justice court of Jack county to recover the amount of the notes and against Birdsong for the value of the two bales of cotton. The record shows no pleadings whatever on the part of either Wilson or plaintiff Allen,

The first assignment of error complains of the action of the court in admitting in evidence a letter written by Wilson to Allen, in which Wilson states: “The landlord taken, the first two bales of cotton. I sold my place last fall and rented on the halves this year so the landlord furnished me this year, and he would not let me have the first two bales,” etc. The material issue in the ease was as to the relationship existing between Wilson and the appellants. Appellants insist that while this letter may have been admissible as against Wilson, its effect should have been limited, and the jury instructed' that it was not admissible as against them. This assignment must be sustained, and because the court failed to limit the effect of the letter in its charge, the judgment must be reversed, and the cause remanded. Wolf v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390; Texas Loan & Trust Co. v. Angel, 39 Tex. Civ. App. 166, 86 S. W. 1056.

The second assignment of error complains that the charge of the court did not state correctly the plaintiff’s cause of action to the jury. Reference to the charge shows that this assignment is not well taken. In fact the statement made by appellant in the. brief contradicts the assignment.

The third and fourth assignments • assail) the charge of the court.- We think the charge, as a whole was a correct presentation of the-issues presented by the appellant’s amended' original answer and the general denial of the plaintiff presumed by the statute.

The sixth, seventh, eighth, ninth, and tenth assignments go to the sufficiency of the evidence to support the verdict and judgment. The testimony of Allen is that Birdsong first claimed the cotton by virtue of his landlord’s lien. The testimony of Birdsong and his son, supported by the testimony of Wilson, tends. to show that the relation of landlord and tenant' or tenants in. common did not exist between them, but that the relation was that of master and servant. We are not informed by appellants’ brief what the special charges requested and refused were, but reference to the transcript shows that they practically presented the same issues as the general charge; and, in view of the conflict in the evidence, and by reason of the rule that the jury were not bound to believe either of said witnesses, since they were parties to the suit, and interested in the controversy (Thomas v. Saunders, 150 S. W. 769), we think the court was correct in submitting the issues to the jury, and that the evidence was sufficient to require such submission.

The record discloses that the court first rendered a judgment against Birdsong & Son, in favor of W. Y. Allen, and, upon motion thereafter made and at the same term, amended the judgment, both as to parties and amount, and complaint is made under the eleventh assignment that, because the verdict of the jury did not mention Wilson, no judgment should have been rendered against him. Wilson was duly cited and filed no answer, and in no way contested the right of appellee Allen to recover against him. The court should therefore have rendered judgment by default against Wilson, and the amendment of the first judgment to that extent was proper.

The verdict of the jury was in favor of plaintiff, “for the amount of note and interest to date, and 10 per cent, for attorney’s fees as stipulated by same, amounting to •¶186.56,” and the first judgment was rendered in favor of Allen against Birdsong & Son for that amount. Upon motion, however, it was ascertained that the jury had made a miscalculation, and that the amount of the note secured by chattel mortgage upon the cotton converted by Birdsong & Son was $91.-60. Article 2016, R. S. 1911, expressly authorizes the court to correct its judgment where it can be done by reference to the record in cases of miscalculation.

Appellant insists that the judgment against Birdsong & Son is upon the note. We do not so construe the judgment. We think it is against them for an amount equal to the note, interest, and attorney’s fees, but for the value of the cotton alleged to have been converted by them to that extent. However this may be, it is an error which will not probably arise upon another trial.

The fourteenth and fifteenth assignments of error are without merit. Because of the error of the court in refusing to limit the effect of the letter from Wilson to Allen, the judgment is reversed, and the cause remanded.  