On Motion for Rehearing.
Appellee insists that, since this cause is reversed and remanded because of error in the proceedings relating exclusively to appellant’s cross-action, and since there appears to be no error in the judgment for appellee on his suit for recovery upon the note in question, the judgment of this court reversing and remanding the case in its entirety ought to be reformed and the judgment of the lower court as to appellee’s recovery affirmed; the judgment as to the cross-action of appellant alone. being reversed and remanded. This position seems to be in harmony with rule 62a of the Court of Civil Appeals, and also with the decision .in the case of Miller v. Wolff Mfg. Co. (Tex. Civ. App.) 225 S. W. 212, and cases cited thereunder. In that case the court says :
“Under rule 62a and the above-cited authorities, the propriety of affirming in part and reversing and remanding in part is not doubtful. But, believing it probably more equitable -to hold the entire case in abeyance until a correct determination of appellant’s damage suit in reconventiori could be made, we decided upon the original consideration of the case to reverse and remand as a whole; however, we are now persuaded to adopt the views expressed in ap-pellee’s- motion for rehearing.” •
Appellant’s assignment of error on account of the court only rendering judgment for $125 on account of defective painting after the jury had rendered a verdict for $200 is well taken; however, we do not believe that the cause'should be reversed on account of said error, as appellant only sued for $125 damage on account of defective paint, and, the court having given him the full amount sued for, he cannot now complain of said judgment.
Accordingly the motion for rehearing is sustained, and the judgment of this court will be reformed, and judgment rendered affirming the judgment of the lower court awarding appellee judgment upon its note against the appellant, and also affirming the judgment of the lower court allowing appellant $125 on account of the defect in painting of said car and reversing and remanding the cause for a new trial of appellant’s cross-action for damages, alleged-to have resulted from the defective brakes on car purchased from ap-pellee. The cost of this appeal will be taxed equally between appellant and appellee.
Affirmed in part, and reversed and remanded in part.'