J. M. Elder v. H. H. McLane, 60 Tex. 383

Delany, J. Com. App. The first assignment of error is that the court erred in sustaining the plaintiff’s exceptions to the original answer. Upon this we can only say that as the answer is not in the record we must presume that the court acted properly. The second is that the court erred in sustaining the exceptions to the amended answer. Our opinion is that this assignment must be sustained. It is true that most of the allegations are vague and indefinite, and are very objectionable on that account.

For instance, there is an allegation that the referee refused to hear evidence as to the locality of the northwest line claimed by the defendant. This looks like an imputation of unfairness to the referee; yet in our opinion the allegation was wholly insufficient. In the first place, the report of a referee upon the facts stands upon the same footing as the verdict of a jury. McHugh v. Peck, 29 Tex., 142. In the second place, averments in pleading will be taken most strongly against the pleader. Suppose, then, that the referee did reject the proffered evidence.

As the pleader does not tell what the evidence was, or show that it was material, we must conclude that it was immaterial and that the referee did right in disregarding it. But there was one allegation, at least, which was specific and which went to the very vitals of the controversy. That was the averment that the referee did not examine the line claimed by the defendant as his northwest line, in order to ascertain whether it was the true line.

By the terms of the agreement between the parties, it was the first duty of the referee to make a careful examination of that line, and if he found it to be the line originally surveyed as the northwest line he was to establish it as such, and the controversy would be at an end. It may' be answered that the report of the referee shows that he did examine this line. That does not mend the matter. Here was an allegation, under oath, that the report was false, and that the referee did not examine the line.

The exceptions admit it to be true, and thus admit that he failed to perform the first duty, and one among the most important duties committed to him. The third assignment is that the court erred in admitting in evidence the report or award of the referee Kinney,, as shown by defendant’s bill of Exceptions. Appellant does not insist on this assignment in his brief, but he raises the same point in his fifth assignment which is taken to the order overruling the motion for a new trial.

The point is this: By the agreement of the parties Tivey was to establish the line, and there was no agreement for Kinney to act unless Tivey declined or was unable to perform the work. How appellant insists that Kinney’s report should not have been received without first showing that Tivey had declined or was unable to perform the duty. This would have been a valid objection if made at the trial, but it comes too late when made for the first time upon appeal. Our opinion is that the judgznent should be reversed and the cause remanded.

Reversed and remanded. [Opinion approved November 27, 1883.] Associate Justice Stayton did not sit in this case.