The deposition of appellee's witness Charles H. Sibley was taken in Chicago, Ill. After same had been returned to the court below and filed with the papers I in the case, and after same had been opened as provided for by the statute, in accordance with an order of said court it was sent by the clerk to the officer who took it in order that he might make his certificate attached thereto conform to the facts and the requirements of the law. This having been done, the deposition was returned by that officer to said court in precisely the same condition, in other respects, it was in when the clerk sent it to him. On the ground that the court was without power to authorize the deposition to be sent out of the state for such a purpose, appellant moved to quash same and assigns as error the action of the court in overruling its motion. We think the court possessed the authority he assumed to exercise, and that his action In exercising it was not erroneous. Gray v. Phillips, 54 Tex. Civ. App. 148,117 S.W. 878.
It is insisted that appellee "did not allege," quoting from the brief, "and did not prove that there was a contract between plaintiff and defendant, whereby defendant was to pay plaintiff any sum of money on account of the sale and delivery of certain materials by plaintiff to one August Balfanz; but it appeared from a preponderance of the evidence that, if there was any agreement or contract in respect to the payment of any money on account of the sale and delivery of certain materials to August Balfanz, said agreement was between said Robertson and one F. H. Dukes, acting for himself as said Robertson understood, and not an agreement in behalf of this defendant to pay plaintiff any money, but was *Page 1179 only an agreement by which said Robertson was to act as distributor of certain money due and to become due said Balfanz among his creditors, and was not an independent primary obligation on the part of this defendant to pay plaintiff any sum of money whatsoever." As we understand the record, appellee not only alleged in its petition, but by testimony conclusively proved, that appellant, acting by Robertson, its duly authorized agent, to induce appellee to ship the doors, undertook, through Dukes, appellee's agent, to pay it therefor out of money appellant was entitled to receive on Balfanz's account August 20th and September 3d; that appellee, relying on said undertaking, delivered the doors to Balfanz; and that appellant, notwithstanding it received on Balfanz's account sums of money more than sufficient to pay appellee for the doors, paid to it only $250 of the purchase price thereof and failed to pay the remainder thereof, to wit, the sum of $914.54. On such pleading and proof the court might very well have peremptorily instructed the jury to find for appellee.
The judgment will be affirmed, but without damages, on the ground that the appeal is for delay. While we think no one of the assignments presents a reason for reversing the judgment, we do not agree with appellee that the appeal should be treated as one for delay only.