In 1903 Adams and Dyer formed a copartnership to buy cotton which existed during the cotton season of 1903-'04. At the close of that season, when they dissolved, they owed the Royse City Bank sums of money aggregating $2,347.89. In settling said sum they executed to the bank two promissory notes, one for $1,146.25, payable November 1, 1905, signed W. H. Adams and R. Z. Dyer, and the other for $1,163.85, payable December 1, 1905, and signed R. Z. Dyer and W. H. Adams. These two notes were paid off and discharged by Adams, who brings this suit for contribution, seeking to recover of Dyer his proportion of the amount so paid, the allegations of plaintiff's petition being, in effect, that plaintiff and defendant, being jointly indebted to the bank, executed and delivered to said bank their two promissory notes aggregating $2,347.89; that he had paid off and discharged same, and asked for judgment for one-half of said amount.
Dyer answered that the copartnership was entered into for the purpose of dealing in "spot cotton;" that Adams had violated said partnership agreement by dealing in "futures," which is wagering upon the rise and fall of the market, and thereby lost $4,300, which was paid by drawing checks on said bank, with which they had a line of credit. That the notes given to the bank were given to cover said indebtedness, and at the time he signed said notes Adams agreed that if he, Dyer, would sign same, he, Adams, would hold him harmless, and on the faith of said promise he signed same.
Adams replied that if plaintiff and defendant dealt in futures, that said transaction had been fully, fairly and mutually adjusted and settled between them, and that the bank was no party to such transaction, and that the said money for which said notes were given had been applied by plaintiff and defendant in their business, and that defendant is estopped from setting up said plea of illegal contract.
A trial resulted in a verdict and judgment for plaintiff for what he sued, and the defendant prosecutes this appeal.
Paragraph one of the court's charge reads as follows: "If you believe from the evidence that plaintiff and defendant had a final settlement and adjustment between them of their partnership accounts and transactions, and after said settlement and adjustment executed the two notes described in plaintiff's petition, then you will find for the plaintiff *Page 402 $1,169.40, with interest at six percent," etc. Appellant complains of the giving of this charge and insists that there is a variance in the allegations and proof, in that plaintiff alleged he and defendant were joint makers of two promissory notes, and he had paid both of them, and sought to recover for one-half the amount so paid, when the evidence shows they were not in fact joint and several notes. That the testimony of plaintiff was that he was principal upon one of the notes and defendant surety, and that defendant was principal upon the other with plaintiff as surety. That defendant testified that plaintiff was principal upon both notes with him as surety.
The two notes show upon their face to be joint and several. Adams testified, in effect, that the notes were given in the settlement of their copartnership business, and to close up their transactions with the bank. That said amounts was what they owed the bank, which was evidenced by various notes they had previously executed jointly, and overdrafts. Dyer admitted to executing the notes, but states he did so upon the promise of Adams that Adams would pay them and he was to be held harmless.
We are of the opinion that there is no such variance in this case between the allegations and proof as was calculated to mislead and surprise the defendant, and therefore the variance, if any, becomes immaterial. McClelland v. Smith, 3 Tex. 213; First Nat. Bank v. Stephenson, 82 Tex. 435.
Appellant assigns the following as error, to wit: "The court erred in failing to submit to the jury the issue and defense relied upon by defendant, and pleaded by him in paragraph six, section 2, of his first amended original answer, which is as follows: 'That plaintiff, knowing that he had lost the funds of said copartnership by gambling and wagering, promised the defendant that if he (defendant) would sign said note with him to comply with the demands of the bank, that he (plaintiff) would himself pay off said notes and hold defendant harmless by reason thereof. And that defendant, relying upon said promise, did sign said notes.' Because said defense was supported by the evidence."
The proposition made is: "It is positive error for the court to fail to submit in his charge to the jury a material issue raised by the pleadings and supported by the evidence."
The issue made by defendant on the trial was that Adams had lost the money in dealing in futures, and had promised to pay the amounts owing by the firm to the bank and save him harmless. This was denied by the plaintiff, and that there had been a full and fair settlement of the firm business.
The court charged the jury: "If you believe from the evidence that there had been no final settlement and adjustment between plaintiff and defendant of their partnership accounts and transactions, then plaintiff can not maintain this suit, and you will find for defendant if you so believe from the evidence."
If there had been a final settlement between the parties, then defendant was in no attitude to receive relief at the hands of the court with reference to Adams' dealing in futures. Smith v. Booty, 49 Texas Civ. App. 628[49 Tex. Civ. App. 628]. *Page 403
The plea of the defendant, that Adams promised to save him harmless from the payment of said notes, was a defense, and the failure of the court to charge thereon was not an affirmative error, but merely an omission, and the defendant failing to request a special charge covering that issue, can not now be heard to complain. The judgment is affirmed.
Affirmed.
Writ of error refused.