(concurring).
I concur in the order affirming the judgment in this case. In his third conclusion of law, the trial judge held that the cross-action was barred by the statute of limitations and that “therefore, Defendants (were) not entitled to offer proof in support” thereof.
In order to recover upon this asserted cross-action it was necessary that appellant (as one of the defendants below) show (a) that he had a cause of action or a valid claim for recovery, and (b) that it had been asserted within the time prescribed by the statute of limitations. As to this second necessary showing, appellant was entitled to the benefit of the liberal provisions of Article 5539b, Vernon’s Ann. Civ.Stats., relating to amendments, which provides that; “Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim, or defense, and at the time of filing such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opposite party, the court may postpone or continue the case as justice may require.”
In my opinion, the trial judge in his third conclusion of law held that appellant in his amended pleading had asserted a claim which grew out of a distinct and different transaction from that declared *257upon in the original answer. I am inclined to the view that this holding was correct. An inspection of the pleadings involved discloses that the original answer, in very-general terms, declared upon matters which occurred in 1945, while the amended answer and cross-action declared upon a specific contract entered into during the year 1944.
However, if by an extremely liberal interpretation of Article 5539b, it can be said that the trial court erred in holding that the transactions declared upon in the amended answer and cross-action were distinct and different from those declared upon in the original answer, there still remains the question of whether or not the record shows that the error is one which requires the reversal of the judgment.
In my opinion, we can not say that the error is reversible because we cannot determine whether or not the appellant met the first requirement for a recovery above set out, i. e., that he had a cause of action or a valid claim. Seemingly, the trial judge excluded evidence as to the existence of such claim or at least refused to give consideration to such evidence in rendering his judgment. At any rate, the asserted error is one similar to the improper exclusion of proffered evidence, and in such cases the rule is well settled that it is necessary to show what the excluded evidence was before a tenable assertion of reversible error can be made. Biggins v. Gulf, C. & S. F. Ry. Co., 102 Tex. 417, 118 S.W. 125; Corrigan v. Heard, Tex.Civ.App., 225 S.W.2d 446. The necessary showing in this case probably could have been made by additional findings upon proper request or by bill of exceptions, Rule 372, T.R.C.P., as well as by a statement of facts.
This case is somewhat unusual, in that an entire cause of action or cross-action is involved, rather than merely a portion of testimony or evidence which might bear upon a cause of action, as is the usual case. It is believed, however, that the applicable principle is the same.
I think the use of findings and conclusions instead of a statement of facts is desirable when practicable, and for that reason I have stated my views in connection with a procedural point which is deemed of importance in connection with appeals based upon findings and conclusions prepared in accordance with Rule 296, T.R. C.P.