Opinion.— It is not necessary for us to determine the correctness of the ruling of the court in sustaining appellees’ exceptions to appellants’ special plea denying the partnership. It is manifest from the record that appellant was in no way injured thereby. • He was allowed to introduce under his general denial all his evidence tending to show that he was not a partner in the concern, etc. When' the exceptions were sustained, as shown by bill of excep*657iions, the court granted appellant leave to amend, but announced to him that it was not necessary to do so, as he would be allowed to introduce his evidence on that issue under his general denial; and appellant did not amend, but, as shown by the record, accepted the suggestion of the court and had the full benefit thereof.
The second assigned error is not sustained by the record. It does not appear therefrom that the court held or ruled that the onus was upon appellant to disprove the partnership, as alleged in the petition.
The charge of the court was a correct exposition of the law applicable to the case made by the evidence, to the extent that it went; and if it did not embrace all the law-applicable to the case, the appellant -should have asked such additional instructions as he thought proper to have been given.
In the case of Robinson v. Varnell, 16 Tex., 382, the court held “that a charge not wrong in point of law, but not embracing all the law applicable to the case, will not furnish reason for reversing the judgment unless proper instructions were asked and refused.”
The appellant did not ask any additional instructions, nor did he except to the charge of the court as given.
A careful examination of appellant’s motions for a new trial, and affidavit thereto attached, fails to disclose any merit in said motions. It does not appear but that by the exercise of reasonable diligence the newly-discovered evidence set forth therein could have been made available on the trial.
The same appears to be merely cumulative of evidence introduced on the trial by appellant.
The cause was fairly submitted to the jury, and their finding is fully sustained by the evidence, and we see no valid reason for reversing the judgment.
Affirmed.