On Motion for Rehearing. The trial court in his findings of fact made the following finding:
"21. That the consideration for which the incorporators of the North Mexico Mining Company S. A. No. 1 agreed to give Colonna 200 shares of its stock was the transfer by him to the company of certain rights to the denouncements of certain mining properties described in the company's charter, which all parties knew all about and the conditions surrounding the same."
Appellee now contends that because there was no attack made upon the above finding by appellant, same is binding upon this court, and that we were in error in holding that there was no consideration to support the transfer to Colonna of an interest in the North Mexico Mining Company No. 1.
The further contention is made that appellants are limited to the assignments of error contained in their motion for a new trial, and that we are not at liberty to consider any additional assignments unless they raise a question of fundamental error.
Both of these questions have been decided adversely to the contention of appellants, we think, by our Supreme Court in the case of Hess Skinner Engineering Company v. Turney, 109 Tex. 208, 203 S.W. 593.
See also 3 Tex.Jur. § 570, pp. 806, 807, and authorities cited.
Under the above holdings, "The judgment of the court having been excepted to, it was not necessary that exception be also taken to the conclusions of law and fact to secure their review on appeal under due assignments of error," and in cases where the trial is before the court without a jury, no motion for a new trial being necessary to entitle appellant to appeal, it is also unnecessary that his assignments be related to his motion for a new trial.
The last contention presented is that we erred in the original opinion in holding that there was no consideration flowing from Colonna to the North Mexico Mining Company No. 1. The charter of the North Mexico Mining Company No. 1 contained the following provision:
"Said charter members exhibited the total value of their shares, with the exception of Mr. Benito Colonna, who, with the consent of his co-partners, assigns and transfers in favor of the Company, in payment of the value of *Page 385 his shares, his rights to denouncements of the mining properties known as `La Palestina,' with an area of two hectares, and situated in the municipality of La Ascencion, Galeana District, State of Chihuahua, `Australia' and `Anahuac,' with an area of twenty hectares each, situated in Morelos District in said State of Chihuahua, in order that the Company may follow said denouncements to termination and acquire for itself the titles thereto so that the same may be developed for the benefit of all the organizers in the proportion that each one represents."
By the above it appears that Colonna was supposed either to have applied for denouncement of the claims mentioned or knew of their whereabouts and had a right to apply for their denouncement.
The record reveals that the claims mentioned were not subject to denouncement and that Colonna had no rights in them which were capable of being transferred.
This being the state of the record, we think our former decision was the correct one to make, and the motion for rehearing is accordingly overruled.