On Motion for Rehearing.
■ Our attention is called to an error in the original opinion in the statement that “the trial was before the court upon an agreed statement of the case and of the facts proven.” That statement is withdrawn; the fact being that the trial was before a jury and the agreed statement of the case and of the facts proven were filed for the purpose of enabling this court to determine whether there had been any error in the judgment, all as provided for in article 2280 of the Revised Statutes.
Appellant insists upon a ruling upon its assignment of error addressed to the charge of the court, reading as follows: “This casé-is submitted to.you upon special issues, and you will, from a preponderance of the evidence, in this case, answer, * * * ” followed by the special issues submitted, the first of which was: “Did plaintiff’s agent, Fritz, prior to the car’s repair, tell Johnny Pringle to go ahead and have the car repaired and plaintiff would extend the notes for thirty days so as to give Pringle time to pay for it?” To which the jury answered “Yes.”
The complaint made is that the preliminary instruction quoted had the effect to place the burden of proof upon the plaintiff to find the facts relied" on by the defendant as a waiver by the plaintiff of the priority of its mortgage lien to the lien claimed by Gabert.
Issue No. 1 was in exact accord with the agreed facts filed here as having been established by the evidence. ■
We did not discuss the assignment because we were unable to perceive how the charge could possibly have worked harm to appellant. However, we will now say that the error, if any, in the instruction, was harmless,* "and the assignment addressed to it is accordingly overruled.
We do not believe that our decision in the present, suit is in conflict with the case of Commercial Credit Co. v. Brown (Tex. Com. App.) 284 S. W. 911, referred to in Vol. 9, Tex. Jur. Sec. 65, and American Type Founders’ Co. v. Nichols, 110 Tex. 4, 214 S. W. 301. The distinguishing feature of this case from those authorities is the issue of waiver, which we held was conclusively established in ap-pellee’s favor by the fact found by the jury in answer to special issue No. 1. We expressly recognize the rule that in the absence of waiver the appellant’s chattel mortgage was superior to the statutory lien claimed by Ga-bert. In the agreed statement of the case and of the facts proven, signed by counsel, the following occurs:
“M. Gabert proved by competent evidence that on March 7, 1928, Johnny Pringle requested him to repair the automobile described which was wrecked. That Pringle advised Gabert that. Fritz had a mortgage upon the ear but stated that if Fritz would extend the Pringle notes he would let Gabert repair the car and he would pay for it. That Pringle ionly wanted the car repaired if Fritz would make an agreement to extend the notes and *75give Mm time. That in Gabert’s presence Pringle called Mr. Fritz of Fritz Motor Company and Gabert beard Pringle say:
“ ‘X have bad a wreck with my car and X will have a note due or it is due now and if you can extend the notes I can have the car' repaired and pay for it.’
“Pringle told Gabert after the conversation that Fritz said it was all right and he would extend the notes. Gabert testified that he would not have placed the repairs on the car if Pringle had not told him (Gabert) that the Fritz Motor Company had authorized him (Pringle) to have repairs put on'and that' Lie (Gabert) would not have gone ahead and put the repairs on the car if Pringle had not telephoned and had the conversation he (Pringle) had.
“Gabert repaired the automobile and the reasonable value of the parts and labor was $173.43 and has not been paid.”
The agreed statement contains this further testimony of Johnny Pringle with reference to the telephone conversation he had with Mr. Fritz:
“I told him that my wife had torn up my. car and that I wanted to get Mr. Gabert to fix it up for me, but that I did not want them to take it away from me under their mortgage before I could get it paid for, and that I wanted them to extend their notes for. thirty days. Blr. Fritz said:
“ ‘All right, go ahead and have it fixed and we will extend the notes so as to give you time to pay for it.’ ”
The Fritz Motor Company offered no testimony to contradict that copied above.
Our conclusion was that the facts found' by the jury in answer to issue No. 1 conclusively established the waiver pleaded by the defendant, as a matter of law, and we believe that conclusion to be well sustained in principle by the opinion in American Surety Company v. Bay City Cattle Co. and many other authorities there cited on the question of implied "waiver.
The motion for rehearing is overruled.