Schneider & Davis v. J. D. Stephens, 60 Tex. 419

Watts, J. Com. App. It is insisted by appellee that the statement of facts copied into the record ought not to be considered as such, for the reason that it is certified to by the presiding judge as an agreed statement, when in fact it is only signed by counsel for appellants ; and also for the reasons stated in the certificate or statement filed by the judge, subsequent to the adjournment of the term at which the cause was tried, notwithstanding it is certified as an agreed statement when in fact it is signed by but one party, the presumption will be indulged that it was properly certified by the judge.

McManus v. Wallis, 52 Tex., 534. The statement of the presiding judge, filed subsequent to the adjournment of the term at which the case was tried, will not be considered in reference to whether or not the statement of facts was properly certified or approved by him. Upon a motion to strike out and suppress a statement, on the ground that the judge had been induced to approve or certify the same on account of deceit practiced by one of the parties or their counsel, supported by proper affidavits, the question might be entertained.

But this court will not entertain that question upon the statement of the judge made and filed subsequent to the adjournment of the term. The statement of the judge was improperly copied into the transcript. Appellants, in their brief, rely upon but one of the errors assigned. Under the rules the others will be considered as waived. That relied upon is: the court erred in excluding as evidence a copy of the letter claimed to have been written by appellee to F. D. Grice, the manager of E. G. Dun & Co.’s'commercial agency, at Dallas.

The contents or substance of the letter is not disclosed by the bill of exceptions. However, Grice testified that the letter was dated December 5, 1878, addressed to him, and was signed Stephens & Shropshire.

This letter had the effect of causing the agency to make a modified report respecting the firm of Stephens & Johnson, to the effect “that unfavorable reports existed, but that good authority, who had the means of- knowing the true condition of Stephens & Johnson’s affairs, believed them to be solvent and reliable, but we advised discretion in new credits, which report was given to our subscribers, Schneider & Davis.” Alfred Davis, one of the appellants, testified that about the 1st of December, 1878, rumors were rife about the insolvency of Stephens & Johnson, but a letter written by Stephens & Shropshire to the mercantile agency stated that Stephens & Johnson were in fine condition, well able to meet all liabilities promptly, and refuting rumors by saying they were circulated through jealousy.

J. D. Stephens, the appellee, testified that he did write the letter to the mercantile agency, dated December 5, 1878; that at the time he believed that Stephens & Johnson were solvent, and would pay their debts and liabilities, and that he was of the opinion that they were good. Without undertaking to determine whether or not the letter would or not be admissible under the issues made in this case, its exclusion by the court would not constitute such material error as would require the reversal of the judgment, for the appellants had the full effect of that evidence.

It was not only testified to by one of the appellants, but was also admitted by the appellee. Hence, if it was error, it must be considered immaterial. Able v. Sparks, 6 Tex., 349; Todd v. Eysart, 23 Tex., 590. Our conclusion is that the judgment ought to be affirmed. Affirmed. [Opinion adopted November 27, 1883.]