Opinion
No. 6207.
April 23, 1919.
Error from Travis County Court; D. J. Pickle, Judge.
Action by the Magnolia Petroleum Company against the Texas Auto Supply Company and another. There was a judgment for plaintiff, and defendants bring error. Affirmed.
See, also, 191 S.W. 573.
E. H. Ratcliff and A. W. Christian, both of Ft. Worth, for plaintiffs in error.
John W. Hornsby, of Austin, for defendant in error.
This is a suit instituted by defendant in error against the Texas Auto Supply Company and H. B. Lyne, individually and as its president, for $278.90 upon the trial of which judgment was rendered for defendant in error in the amount sued for, with 6 per cent. interest from October 18, 1915, and all costs incurred.
It was alleged in the petition that during August and September, 1915, defendant in error sold and delivered to the Austin Tire Supply Company certain merchandise of the value of $278.90; that the property of said Tire Supply Company was transferred to J. J. Milstead, and was transferred by Milstead to plaintiffs in error, and that "the consideration of said bill of sale and transfer in bulk was the assumption of the payment by said E. B. Lyne and Texas Auto Supply Company of the accounts against said J. J. Milstead and Austin Tire Supply Company, including the account of plaintiff, which is sued on herein."
In the first paragraph of the petition in which are found the allegations of a sale of the merchandise to the Austin Tire Supply Company, it was alleged, "which account is still wholly due and unpaid." If that be true, and plaintiffs in error had bound themselves to pay it, it would seem to follow that they had not paid it. The obligation is a clear assertion of a breach of the contract to pay the amount owed. We are of opinion that the petition stated a cause of action. While plaintiffs in error filed general and special demurrers and answer to the merits, they were not present at the trial, and did not urge their exceptions or make any defense, and the court, after hearing the testimony, rendered judgment for defendant in error.
While the allegations may have been insufficient to bring the transaction within the purview of article 3971, Rev. Stats., still the petition contained allegations as to the assumption of the debt by plaintiffs in error, and all the allegations of the petition taken together show liability upon the part of plaintiffs in error.
The general demurrer and special exceptions were never acted upon by the trial judge, and the failure to invoke such action was a waiver of the exceptions, and the case will be viewed as though they were never filed. Sup. Comdy. Knights of Golden Rule v. Rose, 62 Tex. 321; Ins. Co. v. Boren, 83 Tex. 97, 18 S.W. 484; Bonner v. Glenn, 79 Tex. 531, 15 S.W. 572. It follows that plaintiff in error must base his attacks on the judgment on the proposition that the petition states no cause of action, and it was fundamental error to render a judgment based upon it. We think the petition states a cause of action. Loungeway v. Hale, 73 Tex. 495, 11 S.W. 537.
There is no merit in the writ of error, and the judgment will be affirmed.