Voelcker v. McKay

• Decision Date: 20 March 1901
• Citation: 61 S.W. 424
• Parties: VOELCKER v. McKAY.
• Court: Texas Court of Appeals

61 S.W. 424

VOELCKER v. McKAY.

Court of Civil Appeals of Texas.

March 20, 1901.

On rehearing. Motion granted, and former judgment set aside, and the judgment of the trial court affirmed.

For former opinion, see 60 S. W. 798.

FISHER, C. J.

A re-examination of the record leads to the conclusion that we erred in the construction placed upon the instrument sued upon by the appellee. There are expressions in that instrument, which, in effect, constitute a contract between the Sawyer Medicine Company and the appellant, whereby the latter promised to pay the amount sued for. This being true, the four-years statute of limitation would apply, and not the two-years statute. We cannot consider those assignments of errors which complain of the verdict of the jury and judgment of the court as being contrary to the evidence. The question here raised by these assignments of error was not called to the attention of the trial court by a motion for a new trial. It is true that the motion for new trial, in general terms, states that the verdict of the jury is contrary to the law and the evidence, and this is all that it says upon that subject. This statement is too general to be considered, and, in view of the ruling made by the supreme court in Degener v. O'Leary, 85 Tex. 171, 19 S. W. 1004, and the case there cited, doubtless the trial court declined to pass upon this question. For the reasons stated, the motion for rehearing is granted, our former judgment set aside, and the judgment of the trial court affirmed.