Smith v. T. M. Richardson Lumber Co.

• Decision Date: 19 November 1898
• Court: Texas Court of Appeals
• Parties: SMITH v. T. M. RICHARDSON LUMBER CO.

47 S.W. 753

SMITH v. T. M. RICHARDSON LUMBER CO.

Court of Civil Appeals of Texas.

November 19, 1898.

On rehearing. Denied.

TARLTON, C. J.

We deem it proper to state additional conclusions upon that ground of the motion which urges error in the second section of our original opinion (47 S. W. 386), having reference to the issue of insolvency on the part of Tyree, the maker of the note in suit. Upon this we are of opinion that, if we committed error in holding that no other reasonable deduction than that of the actual insolvency of Tyree could be drawn from the evidence, as indicated in that opinion, we must nevertheless overrule the appellant's contention. If the general charge was defective, the defect was one of omission, merely, in the failure to submit the issue of actual insolvency. Says Chief Justice Stayton in Railway Co. v. Gay, 86 Tex. 609, 26 S. W. 615: "It has been held, in a long line of decisions, that a charge correct so far as it applies to the facts, but omitting to state the law applicable to an issue raised by them, furnishes no ground for reversal, unless a proper instruction relating to the matter omitted be asked and refused." A special instruction was asked in this instance, but it submitted exclusively the issue of the notorious insolvency of the defendant Tyree. The evidence certainly did not raise the issue of such notorious insolvency. The testimony bore exclusively upon the actual insolvency of the maker, Tyree. Hence the special instruction would have been positively improper and misleading. The court correctly rejected it. The motion is overruled.