¶1This is an action for the recovery of the value of certain goods, consigned by appellee to White & Co. for sale, &e., which have never been accounted for. The proof is made out sufficiently to sustain the action, in accordance with the verdict of the jury.
¶2The objections taken by appellant to the letters of White & Co,, because they furnish evidence of a cause of action, apparently barred by the statute of limitations, is not tenable, that not being the proper time or manner of raising such a question.
¶3The proof shows that the goods were held and disposed of by White & Co., in trust for Leavitt, and there being no evidence that the trust was ever repudiated, the statute of limitations did not run upon the cause of action; as it has often been decided by this Court.
¶4The transcript of the attachment suit, instituted in Galveston, .was properly admitted in evidence, to show when the funds in the hands of White & Co., belonging to Leavitt, were disembarrassed from the garnishment which was served on White & Co., that being the time at which White & Co. expressly agreed, in their letters, to account to Leavitt for his goods or the proceeds thereof.
¶5The error assigned, that the appellant was not allowed the benefit of the testimony of the leading counsel of the plaintiff, who was sick and had to retire from the Court-house during the trial, was not supported by any affidavit of its materiality, either during or after the trial, and therefore he has not placed himself in a1 position to rightfully complain of the action of the Court, in not delaying the case until he could procure it.
¶6At the trial the appellee, who was plaintiff below, dismissed Ms suit as to Ashworth, who was sued as a partner of White; which is now assigned as error. There was no exception taken to the dismissal, nor was there any motion or proceeding of any *706kind predicated on it below; nor does it appear for what reason it was done, unless it be, that Ashworth ceased to be a partner of the house before the suit was brought, which was in proof, and from which it might have been inferred and was probably well known to the parties, that the proceeds of the goods still continued in White’s possession, who continued in the business. From the facts of the case, it does not appear, nor has appellant taken any steps to show, that the dismissal as to Ashworth has prejudiced his rights, or is calculated so to do; and therefore we cannot hold it to be erroneous. (Horton v. Wheeler, 17 Tex. R. 52.) Judgment is affirmed.
¶7Judgment affirmed.