On Motion for Rehearing.
In his motion for rehearing appellant complains of our overruling his contention that what was known as the “Anderson note” was.-merged into the judgment and became res adjudicata as to all matters pri- or thereto. Upon re-examination of appellees’ pleading on .this point we find that, as contended by appellant, appellees did not allege that the note for $4,244.65 was executed and delivered in payment of said judgment to the American National Bank, but that same was given in payment of the debt (that is, the Anderson note) on which said judgment was .rendered. And this was the issue submitted to the jury in question No. 3, complained of by appellant. Appellees did allege, however, that said judgment had been paid off and satisfied when assigned to John Wolf, Jr.
Whether the note for $4,244.65 was given in payment of the “Anderson note” on which John Wolf, Sr., was surety, or given as additional security for its payment, the result is, in our opinion, the same. It is clear from the evidence-that, so far as the American National Bank was concerned, its debt against Anderson, Malone, and John Wolf, Sr., was in fact discharged "by the note for" $4,244.65, whether that debt be considered as evidenced by the original note or by the judgment sued upon by appellant. We are also of the opinion that the evidence was sufficient to show that John Wolf, Jr., had paid said note out of funds belonging to his father, or out of partnership funds, and had reimbursed himself for all such sums prior to the .time John Wolf, Sr., executed the $2,683 note. Such is the effect of the finding of the jury in answer to question No. 4. But, regardless of this, we think the findings of the jury in reply to question No. 2 conclusively disposes of the case against appellant and renders further discussion unnecessary.
Appellant earnestly insists that this court erred in not reversing the case because of the error committed by the trial court in submitting -question No. 1 in its general form. We have carefully read and considered Worden v. Kroeger (Tex. Com. App.) 219 S. W. 1094, Anderson & Co. v. Reich (Tex. Com. App.) 260 S. W. 162, and Ft. W. & D. C. Ry. Co. v. Morrow (Tex. Civ. App.) 255 S. W. 674, on this issue, and are of the opinion that the rule there laid down does not govern the case before us. Each of those cases was a suit for damages charging negligence of the defendant, and in each case the court, in addition to the questions of fact submitted to the jury, also gave additional charges either grouping certain facts as constituting negligence or submitting some proposition of law in connection therewith, or submitted some special issue calculated to confuse the minds of the jurors. No such charge was given in the instant case. Nor does it appear that said question No. 1 confused the jury in their consideration of question No. 2, or that it worked an injury to appellant in the consideration of, and answer to, question No. 2. Appellant's motion is therefore overruled.
Overruled.
On Motion for Conclusions of Fact and Law.
Appellant has filed herein his motion that this court make and file its conclusions of fact and conclusions of law. We do not desire to unduly prolong the opinion in this *496case nor to make it more voluminous, and .therefore shall not set out suqh findings herein. It is sufficient to say that conclusions of fact numbered 1, 2, 3, 4, 5, 6, and 7, submitted in appellant’s motion, are adopted. Those numbered 8, 9, 10, and 11 are refused. In refusing to adopt the last four as submitted we do not mean to say that .we find against appellant on all the matters presented in said proposed conclusions, but only that we cannot approve them in toto as offered. On these matters, as on the other findings for that matter, we think our main opinion and that on the motion for rehearing set out our findings and conclusions on all facts essential to a disposition of this appeal. We therefore deem further discussion here unnecessary.
Our conclusions of law are sufficiently stated in our opinion, and further statement is unnecessary. To the extent indicated appellant’s motion is granted, and in other respects it is overruled.
Granted in part, and in part overruled.