From the rulings of the majority upon which the reversal is based I dissent for the following reasons: First If there is any variance between *Page 561 the notes sued upon and the one offered in evidence, it is a matter of misdescription only, and was not such as tended to mislead or surprise the appellants, and was properly disregarded by the court. Washington v. Bank, 64 Tex. 4; McClelland v. Smith, 3 Tex. 210; Hays Co. v. Samuels Sons, 55 Tex. 560; Taylor v. Merrill, 64 Tex. 494; and other cases cited in 13 Encyclopedic Digest, 1168, 1169.
Second. It appears from the undisputed evidence of the plaintiff Ramsey that he knew nothing about the chattel mortgage having been executed to secure the payment of this note until the trial of the case. Furthermore, if the property mortgaged was dissipated, there is nothing to show that he was responsible therefor. If it was dissipated and lost it was done by the mortgagor, G. W. Wahl, the principal obligor in the note sued upon. Furthermore, the chattel mortgage mentioned covered the following:
"All stock of whisky, both barrel and bottle goods; all beer and glassware; one liquor dealers license; one National cash register; twelve chairs; three tables; all located in building on east side, Main street, Ysleta, Tex."
The stock of whisky mortgaged represented the stock in trade of a retail liquor dealer, which was to be sold in the ordinary course of business, and was void as to that item. As to the liquor dealer's license, the lapse of time rendered it of no value.
It does not seem to the writer that the appellee in this case, upon the record presented, can be defeated of his right to recover against the surety, Mrs. Wahl, upon the theory that he has been a party to a dissipation of the mortgaged property, nor upon the theory that he has not been diligent in applying the security of the mortgage to the payment of his debt.
The writer is of the opinion that no reversible error is presented, and that the judgment should be affirmed, and here now enters of record the grounds of his dissent from the rulings of the majority, as by law required.