author: MARTIN, J.

text:
    ELLIOTT-GREER OFFICE SUPPLY CO. v. MARTIN.
    No. 3837.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1932.
    Rehearing Denied Dee. 14, 1932.

      Wm. H. Evans and Bean & Klett, all of Lubbock, for appellant.
    Tom Garrard and Lockhart & Brown, all of Lubbock, for appellee.
   MARTIN, J.

Appellee sued appellant for the breach of a contract, alleging, in substance and effect, that he was employed on the 20th day of October, 1930, for one year, to serve defendant as a salesman for office supplies in the Lubbock territory, for which appellant was to pay him an agreed commission and advance him $65 per week to be charged against his commissions.

This contract was in writing and contained the following stipulations: .

“The salesman shall receive no commission on sales that are not paid for by the customer.
“The Company shall furnish the salesman an automobile in which to travel; the salesman agrees to pay all expenses on such automobile and keep it in repair, furnish all tires, oil, gasoline, license and other things necessary to travel his territory.
“The salesman agrees to pay all his traveling expenses and to diligently work the territory in an endeavor to secure business.
“The Company agrees to advance the salesman the sum of ($65.00).sixty-five dollars per week to be charged against his commissions.
“The salesman agrees to work diligently and to put forth an honest effort to collect all money due the Company on due' dates and to forward it immediately to the Company’s office in Amarillo, Texas.”

, Appellee alleged he worked under this contract for about three months when he was, without just cause, discharged by appellant, ánd filed suit for ■ $2,700, which amount he claimed he would have earned during the remaining nine months of the life of the contract.

Appellant admits. the discharge. of: appel-lee and alleges as an excuse for same and in bar of his suit certain facts showing a breach of the contract by him and pleaded in great detail specific acts of dishonesty and disloyalty which it claims justified the action taken. The more important of these facts were that appellee had secured a contract to sell life and' fire insurance and did sell same; that he 'took sums of money out of the cash drawer of the local store at Lubbock; and that he forged a certain order for a typewriter on a gin company at Little-field.

It is strenuously urged by appellant that its request for a peremptory instruction should have been given, particularly because the evidence shows without contradiction that appellee was using the time of appellant to engage in other lines of business without the knowledge or consent of appellant and that he was disloyal and dishonest.

We think the testimony does uncontradict-edly show that appellee did sell and attempt to sell life insurance and some fire insurance, and that by an overwhelming prepon-dérance of the evidence that this occurred during business hours. All of appellant’s propositions and its theory is based upon two propositions, the existence and correctness of which must be assumed to reach the conclusion that a peremptory instruction should have been given; viz.: (1) That the contract in question entitled appellant to the entire services and time of its said employee; and (2) that all the acts of appellee pleaded and proven in bar of this suit' were without the knowledge and consent of appellant.

If it is mistaken in these two theories, its propositions fail, particularly in view of the findings of the jury hereafter set out, which we think find support in the evidence.

Of the rule in the construction' of contracts of this character, it has been stated: “In the absence of an express or implied agreement upon the part of the employee to devote his entire services to the service of the employer, he may employ such time as is not required in the performance of his duty to his employer in such way as he may deem advantageous to himself, provided it is not inconsistent with his contract nor detrimental to his employer’s interest or to the value of his services to his employer.” 39 C. J. 124.

In the case of Jaffray v. King, 34 Md. 217, the court had before it this identical question, based upon the following contract: “We hereby engage your services as salesman from this date, ’till the 30th of June next inclusive, at the rate of $350 per month. Tour particular field will be' the city of Baltimore, and you are at liberty to solicit all such dealers there as we do not already sell to. All new trade from that city, introduced by you, will go to your credit, and all orders obtained by you, whether from old or new customers, will likewise be credited to you.”

In holding this did not constitute a contract for the exclusive services and time v of the salesman, the court said: “In the discharge of that duty, he was bound to serve them in good faith, and to the extent of his ability, but if doing this did not require his whole time, he could, without violating his engagement with them, occupy the remainder in any other pursuit he might deem advantageous to himself, provided it was not inconsistent with his contract, not detrimental to their interests, and did not impair the value of his services to them as salesman of their goods in that market. * * * If it had been the intention to engage the entire services and the whole time of the plaintiff, and that he should not engage in any other employment whatever, it would have been very easy to have inserted in the contract a clause to that effect.”

Eor other similar cases see Hermann v. Littlefield, 109 Cal. 430, 42 P. 443; Stone v. Bancroft, 139 Cal. 78, .70 P. 1017, 72 P. 717; Hillsboro National Bank v. Hyde, 7 N. D. 400, 75 N. W. 781; Clark v. Kelsey, 41 Neb. 766, 60 N. W. 138; Dayton Lumber Co. v. Stockdale, 54 Tex. Civ. App. 611, 118 S. W. 805.

Applying here the principles announced in these decisions we find no difficulty in reaching the conclusion that appellant is in error in its construction of the contract in question, and that, under its terms, the ap-pellee was free to engage in such work as was not inconsistent with his contract of employment nor detrimental to the interest of his employer and which did not impair the value of his services to it as a salesman.

Upon the remaining proposition there is testimony raising an issue that appellant knew of all the acts set out in its pleading done by appellee and that it either expressly or impliedly consented thereto or condoned and ratified each of them. Obviously appellant cannot complain of the employment of appellee in work to which it either expressly or impliedly consented, nor to alleged acts of dishonesty of which it had knowledge and condoned. Some testimony of alleged dishonesty appears in the record pertaining to matters having no relation or connection with the work of appellee under his contract, and which, therefore, could hot be made the basis of a peremptory instruction.

The court submitted the following special issues:

“Special Issue No. 1.
“Do you find by a preponderance of the evidence that the plaintiff, Clarence C. Martin, failed to diligently work for the best interest of his employers, see Elliott-Greer Office Supply Company, in compliance with his contract? Answer yes or no.
“If your answer to the above question is in the affirmative, you need not answer any further, but if your answer is in the negative, then please answer Special Issue No. 2.
“Special Issue No. 2.
“What amount of money, if any, do you find from the preponderance of the evidence, that the plaintiff would, have earned during the period from the date he was discharged by defendant, to October SO, 1931, had he been permitted to continue under the contract in evidence, over and above all his necessary expenses in performing his duties under said contract, and over and above any sum which he by the use of due diligence would have been able to make during said period, which he would not have been able to make had his employment under the contract been continued? Answer in dollars and cents.”
“Defendant’s Requested Special Issue No. 5:
“At the request of the defendant you will answer the following special issue:
“Do you find from the evidence that at the time plaintiff was discharged he had abandoned his contract of employment in whole or in part? Please answer yes ór no.”

The jury answered “No” to the first and last of these.

Appellant complains that the court erred in refusing its requested special issue No. 8 asking if at the time appellee was discharged he was using part of the defendant’s time working at other lines of business. This charge, in effect, assumes that the contract in question as a matter of law under the facts of this record entitled appellant to appellee’s entire time and services. Since we have reached the conclusion that the contract is not susceptible of such construction, the special charge was properly refused.

Appellant’s requested special issue No. 3 read as follows: “Do you find from the evidence that the plaintiff was acting dishonestly toward the defendant at the time he was discharged?”

This was refused and this action of the court is assigned and urged here as error.

The statement of facts in this case is 387 pages long, is in question and answer form, and is befogged with all the usual bickering and argument of counsel' before the court. So far as we are able to ascertain from a complicated statement of facts, every instance of claimed dishonesty was explained by appellee in such way as to show that appellant condoned and ratified such alleged acts. Obviously appellant is in no position to complain if it either expressly or impliedly acquiesced in or condoned and ratified these. It is undoubtedly true as a legal proposition that the employee must act honestly toward his employer and the position of appellant as an abstract proposition of law is correct, but the trial court was justified in refusing the requested instruction in the form asked because it ignored the issue made by appel-lee’s ¡testimony of a knowledge of, acquiescence in, and ratification by, appellant of the acts in question.

This proposition is not supported in appellant’s brief by sufficient quotations from the record to illustrate the claimed error. This would probably justify us in refusing to consider it, though it has not been expressly so decided, so far as we know, since the recent legislative enactment on briefing.

It is next argued that the trial court erred in refusing to give defendant’s specially requested issue No. 12, reading as follows: “Do you find from the evidence that at the time plaintiff was discharged he could and should have earned by the exercise of ordinary diligence in other lines of business as much as he was earning from the defendant?”

The burden was on appellant to plead and prove facts minimizing the damages claimed by appellee. 13 Tex. Jur. 376.

A sufficient reply perhaps to this proposition is that appellee was under no duty to endeavor to obtain employment in any line of business other than one of substantially the same grade and character from which he was discharged. 39 O. J. 117. However, without so deciding, we regard issue No. 2 above quoted as sufficiently covering this phase of the case. The plaintiff asked for $2,700 damages and offered testimony tending to show this amount. The verdict was for only $900. Appellant pleaded and offered some evidence to show a mitigation of the damages. Under special issue No. 2, to which appellant offered no objection in the trial court, the jury were authorized to and did mitigate the claimed damages. This issue we think sufficiently protected appellant.

It is urged that there was certain jury misconduct in this: That the jury disagreed as to certain testimony and desired to get more light on it and knocked at the door. The district clerk responded, the foreman made his wants known, to which ¡the clerk replied: “I will get the Judge.” This is substantially all that occurred, as shown by testimony on motion for new trial.

Articles 2195 to 2198, both inclusive, of the Revised Statutes of 1925 are cited by appellant, together with many cases, including Kilgore v. Moore, 14 Tex. Civ. App. 20, 36 S. W. 317 and Crosby County Cattle Co. v. Corn (Tex. Civ. App.) 25 S.W.(2d) 283, 290, as sustaining its contention that.this was error.

We think the following articles of the statute apply to the question under consideration: “If the jury disagree as to ¡the statement of any witness, they may, upon applying to the court, have such witness again brought upon the stand; and the judge shall .direct him to repeat his testimony to the point in dispute, and no other, and as nearly as he can in the language used on the trial; and on their notifying the court that they disagree as to any portion of a deposition or other paper not carried with them in their retirement, the court may, in like manner, permit such portion of said deposition or paper to be again read to the jury.” Article 2199, R. C. S.

“Where the ground of the motion is miscon-duet of the Jury or of the officer in •,charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material.” Article 2234, R. O. S.

There is a marked distinction between misconduct of the trial judge and misconduct of the jury. It is error per se for the judge to communicate or permit a communication with the jury in violation of the mandatory provisions of the statute and the law in such case does not speculate on whether or not there was injury, hut not so in the case of ordinary jury misconduct. This is true by ■virtue of the terms of article 2234, which impliedly authorizes an inquiry by the trial judge to determine whether or not any communication made to the jury “be material.” Belonging, to the first class of cases, we cite ■the following: Oases last cited supra; Gerneth v. Galbraith-Eoxworth Lumber Co. (Tex. Com. App.) 38 S.W.(2d) 775; Parker v. Bailey (Tex. Com. App.) 16 S.W.(2d) 1033.

For cases illustrating the second, see the following: Parks v. Missouri, K & T. R. Co. (Tex. Civ. App.) 1¾ S.W.(2d) 373; International-Great N. R. Co. v. Cooper (Tex. Com. App.) 1 S.W.(2d) 578; St. Louis, B. & M. R. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959.

The courts do not presume injury in ■ordinary cases of jury misconduct. The burden of proof rests on the party asserting jury misconduct to show injury. Southern Traction Co. v. Wilson (Tex. Civ. App.) 241 S. W. 636; Parker v. Miller (Tex. Civ. App.) 258 S. W. 602; Kaker v. Parrish (Tex. Civ. App.) 187 S. W. 517; see also notes under article 2234, Vernon’s Ann. Civil Statutes, 1925.

We think this record fails to show injury or prejudice to appellant by the alleged misconduct.

Lastly it is argued that certain conduct of the jurors in asking questions in open court concerning testimony in dispute was error. No objection appears to have- been made to this proceeding at the time by appellant and no bill of exception brings the matter forward. Under these circumstances nothing is presented for review. Carter v. Guaranty State Bank of Woodville (Tex. Civ. App.) 262 S. W. 108 ; article 2237, Vernon’s Ann. Civ. St. and notes thereunder.

Finding no error in the record, the judgment is affirmed.

Opinion on Motion for Rehearing.

In an earnest motion for rehearing appellant urges that, since it pleaded specific acts of dishonesty and disloyalty of appellee toward appellant" in bar of his suit, to which appellee pleaded neither waiver, condonation, acquiescence, or estoppel in reply, this- court was in error in overruling its assignment.

Obviously the term “dishonesty” under the peculiar facts of this case cannot be given its ordinary meaning. The issue was not whether appellee was a dishonest man as an abstract proposition and as ordinarily understood. If appellant directed the performance of such acts or legally ratified them, it could not thereafter allege and prove their existence in bar of plaintiff’s suit, even if dishonest as that word is commonly understood. Appellee denied generally in his pleadings these alleged acts of dishonesty and testified, without objection, in such way as clearly made an issue of whether they amounted to dishonesty towards appellant. The trial court was, therefore, not justified in submitting the naked question of whether he acted dishonestly toward his employer without any qualification or explanation. The jury would thus be turned loose without any guide to find any act of appellee dishonest, though same may have not amounted in law to such or even been pleaded. Ini addition to this it seems fairly clear, though we do not expressly so decide, that whether he acted dishonestly is a legal inference to be drawn by the court from proper findings of the jury upon the issuable facts pleaded.

It is clear that a trial court does not err in refusing an improper charge. Speer’s Special Issues §§ 253 and 263, and authorities there cited.

It is suggested, however, that the requested charge, though wrong, was sufficiént to call the trial court’s attention to his error of omission and place upon him the burden of giving a correct one. It is undoubtedly true that a requested charge, though erroneous, may under some circumstances be regarded as an implied request to submit a correct one which can be made the basis of a meritorious assignment of error. However, we know of no case holding that such a question can be raised for the first time in a motion for rehearing and require consideration without any assignment of error. There is a difference between an error assigned to the refusal of the court to give an incorrect charge and one which questions his failure to give a correct one. Olds Motor Works v. Churchill (Tex. Civ. App.) 175 S. W. 785; Gulf Production Co. v. Gibson (Tex. Civ. App.) 234 S. W. 906.

The appellant has presented no assignment of error here except to the failure of the court to give its requested charge. Under the last authorities, supra, we cannot consider the question suggested.

The above disposes also of the assignment relating to appellant’s requested charge attempting to present the issue of appellee’s disloyalty toward his employer.

The motion is overruled.


source: Caselaw Access Project

author: DUNKLIN, J. LATTIMORE, J.

license: Public Domain

text:
    CARLTON et al. v. ADAMS et al.
    No. 12687.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 1, 1932.
    Rehearing Denied Oct. 29, 1932.
    Marshall & King, of Graham, for appellants.
    E. G. Thornton, of Olney, for appellees.
   DUNKLIN, J.

On June 29, 1928, J. W. Carlton, who then resided in Young county, Tex., made a shipment of 18,500 pounds of wool from Graham, Tex., to Boston, Mass., for sale. As the result of prior negotiations between the parties, ■the shipment was consigned to Adams & Leland, a partnership firm composed of Samuel G. Adams, Edmund E. Leland, Harry P, Bradford, and Harold M. Cummings, who were engaged in the business of wool commission merchants, selling consignments of wool as agents for shippers on the Boston market for a commission to be paid them by the shipper for their services. The bill of lading issued by the railroad company at Graham named the commission merchants firm of Adams & Leland as consignees and the wool was delivered to them upon its arrival in Boston on July 15, 1928. Attached to the bill of lading was a draft drawn by the shipper upon Adams & Leland for the sum of $5,550, payable to the order of the shipper, and the same was paid by Adams & Leland upon receipt of the wool. That draft was drawn and paid under a prior agreement between the shipper and the consignees that the same would be by way of advancement to'the shipper and that the consignees would account to him for any excess over and above the amount of the draft which might be realized from the sale of the wool, and that, should the wool sell for less, then Carlton, the shipper, should pay to the consignees the difference. There was a further understanding between the parties that, after the wool arrived, consignees would advise the shipper as to the best market price that could be realized and get bis consent thereto before making a sale. Carlton was a customer of the First National Bank of Graham, and both he and Mr. Bloodworth, the cashier of that bank, as his agent, conducted considerable correspondence with the consignees with respect to the sale of the wool. On August 30, 1928, Mr. Bloodworth, for and in behalf of Mr. Carlton, addressed a letter to ¡the consignees inquiring whether or not the wool had been received and what the same could be sold for. Up to that time the consignees had not acknowledged receipt of the wool.

On September 4, 1928, the consignees addressed a letter to Mr. Carlton, acknowledging receipt of the letter from Mr. Bloodworth, and apologizing for failure to notify him of the receipt of the wool, and further stating that the Shipper’s interest had not suffered on account of that oversight because, ever since the wool arrived, the wool market had been very dull, and that there had been practically no call whatsoever for Texas wool; further stating that the shipment was then on the showroom floor, where it would be exhibited to customers, and further stating that the market value of the wool was about 38 cents per pound. On the same date the consignees also wrote to Mr. Bloodworth, calling attention to the letter already written to Mr. Carlton, and with advices to the same effect. In reply to those letters, Mr. Bloodworth and. Mr. Carlton both notified the consignees of Carlton’s unwillingness to accept 38 cents per pound for the wool. Thereafter there was a further decline in the wool market, during which the consignees tried to induce Carlton to give to them the privilege of selling for the best market obtainable on account of the fact that the market was still declining, and the market price of 36 cents was quoted in some of that correspondence. In reply to those letters, both Carlton and Bloodworth informed the consignees of Carlton’s unwillingness to accept less than 44 cents gross, or 42 cents net for the wool. The decline in the market then continued until it reached an average of 25 cents per pound, and the consignees were finally authorized to sell it and did sell it at that price.

After the sale, the consignees demanded of Carlton payment of $2,855.76, difference between the amount they had advanced to him ■by payment of the draft, drawn on them, to wit, $5,550, and the amount realized from the sale, less freight which they had paid, and their commission of 2 per cent, on the sale; and, upon his refusal of that demand,' the consignees instituted this suit against him in the district court of Young county to recover that sum. And, from a judgment awarding plaintiffs that relief, the defendant has prosecuted this appeal.

In addition to a general denial of plaintiffs’ cause of action, the defendant filed a plea in reconvention to recover of the plaintiffs the sum of $2,220, as the difference between the $5,550 which he had collected from the plaintiffs on his draft and for which he gave plaintiffs credit, and what would have been realized for the wool had it been sold for 42 cents per pound net to him, or 44 cents per pound less 2 per cent, commission to the consignees. The basis of that cross-action consisted in allegations that, upon arrival of the wool in Boston, on July 15,1928, its market value was 44 cents per pound, or 42 cents per pound net after allowing a commission of 2 per cent, to the consignees; that, if plaintiffs had notified him of that market value immediately upon receipt of the wool, as they had agreed to do, he would have instructed them to sell at that price, and that they could then have realized 42 cents per pound net to him. There were further allegations that the plaintiffs were guilty of negligence in failing to notify him of such market value of the wool, and that such negligence was a proximate cause of his loss in failing to realize 42 cents per pound for his wool after deducting the freight and commission from the selling price of 44 cents per pound.

Plaintiffs made out a prima facie case for recovery of the amount awarded to them, which was the difference between the amount which they advanced to the defendant and the amount realized from the sale of the wool. It follows, therefore, that the only issues involved upon the trial of this case "were those growing out of the cross-action by the defendant against the plaintiffs.

The case was tried before a jury, who, in answer to a special issue submitted to them, found that the plaintiffs were not guilty of the negligence alleged in the cross-action, which the defendant averred was the proximate cause of his failure to realize a net price of 42 cents per pound for his wool. That was the only issue submitted to the jury, and no other issue was requested by the defendant except one presenting the same issue of negligence which was passed on by the jury, in different language, and no complaint is presented here to the refusal of that issue.

The only assignments of error presented here are to the rejection of testimony ■of the defendant Carlton and his two witnesses, W. H. Bachellor and D. G. Yick, offered in behalf of the defendant to show the market value of the defendant’s wool in the Boston market at the time of its receipt by the consignees. The objection to that testimony which the court sustained was upon the alleged ground that the witnesses had not qualified to give their opinions of such market value. The testimony of all three of those witnesses showed that, prior to the shipment in controversy, they had been engaged in the shipping of wool for sale on the Boston market, and that they and others engaged in a like business in Texas had kept in touch with the Boston wool market through market quotations in the Port Worth Star-Telegram and other publications, which purported to give daily quotations of that market, and that those market quotations were relied on by such shippers and usually found to be correct. The witnesses further showed that they were familiar with the different classes of wool and the different prices thereof as quoted in those publications. The witness W. II. Bachellor further testified that he made a shipment of wool to the Boston market ■about the 1st of June, 1928, and that it was sold August 31st of the same year for 44 cents gross, or 42 cents net to him, which was its market value. The witness D. G. Vick testified that on or about the 15th day of July, 1928, the market value on the Boston market of the hind and character of the wool that he produced on his ranch in Young county was from 42 cents to 44 cents per pound, and that that was the market value of the same kind of wool during the years 1930 and 1931. None of the witnesses had ever been to Boston, and therefore had never seen any sales made on that market. The witnesses Bachel-lor and Yick both described the kind and quality of the wool which they shipped, but neither of them had ever seen Carlton’s wool, and therefore were unable to testify as to its quality and grade; but the defendant Carlton testified that he had seen the wool shipped by both Bachellor and Yick and to which they referred in their testimony, and further testified that his wool was of like quality and even better than the wool shipped by each of those witnesses.

In addition to the objection that the witnesses had not shown themselves acquainted with the market value of wool on the Boston market sufficiently to give expert testimony on that issue, there was a further ground of objection that market value could not be shown by individual sales.

Aside from the prices realized by Bachel-lor and Yick for their wool, we believe they showed themselves qualified to testify to the market value of the wool of those grades. We believe further that Carlton also qualified to give his opinion as to the market value of his wool, especially in view of his testimony that the same was of the same grade and quality of that shipped by Bachellor and Vick. Hence we conclude that the court erred in excluding the testimony of the defendant and Bachellor and Vick on the question of market values on the ground of lack of qualification. 17 Tex. Jur. pp. 443 and 750 to 752, inclusive.

However, the record before us shows that, by agreement of counsel on both sides, all the correspondence between the consignees and the shipper and Mr. Bloodworth, cashier of the First National Bank of Granam, as .agent of the shipper, with respect to the shipment and sale of the wool, was introduced in evidence. That correspondence was quite voluminous, consisting of numerous letters and also telegrams. In consignees’ letter to the defendant Carlton, of date September 4, 1928, Carlton was told that the market value of his wool at that time was 38 cents per ■pound, and in reply thereto Carlton wrote to them, from which letter we quote as follows: “Well, as to your price of 38$ per pound — that is not satisfactory at all. My friend near here — at Palo Pinto, Texas, W. H. Bachel-lor, has just received 444 straight on a carload of wool that he shipped to a competitive firm in your city; practically the same class of wool; though if any difference my wool is better class than his was. * * * I had expected to get 454 for this wool. * * ⅜ ”

On September 11th, for and in behalf of Carlton, Bloodworth wrote the consignees, saying in part: ■

“We do not feel that the figures of 38$ would be enough on the wool. * * * Some of our customers shipped to another commission company in Boston and they were paid 44$ for their wool and we feel like this wool of Mr. Carlton’s should bring at least 44$.
“There has not been much wool in Young County up until the last two or three years, but is increasing each year, so please do not sell the wool for less than 44$ or the mohair for less than 75$ without hearing further from Mr. Carlton.”

In reply to those two letters, the consignees wrote to Carlton, calling his attention to the continued dull market and the difficulty in finding purchasers for Texas wool, and further stating: “The only comment we can make on the price at 44$ which your friend at Palo Pinto has just received, is that either his wool for some reason was more valuable than yours, or the transaction took place a long time ago and has only just been reported,” and further assuring the shipper that they would make every effort possible to realize the best price obtainable for the wool.

On November 16th Mr. Bloodworth wrote another letter to plaintiffs, requesting that they wire the best price obtainable for Carlton’s wool. On November 21st plaintiffs replied to that letter, saying that there was practically no demand for such wool, and further stating: “When a limit of 44$ was placed on this wool, as we wrote you at that time, it meant taking the wool out of the market, as it was so far above what similar wool could be purchased for in this market at that time,” but with further assurances that plaintiffs would make every effort possible to obtain the very best price for the shipment. On November 28th Carlton wrote to the plaintiffs acknowledging receipt of the letter last referred to, addressed to Mr. Bloodworth, and also of one to the same effect addressed to him, containing this further statement: “It seems rather peculiar that D. G. Yick and W. H. Bachellor each shipped carloads of the same wool and at the same time as we shipped our wool, and Mr. Vick’s sold in October for 42$ straight. Our wool is some better than Mr. Vick’s and equally as good as Mr. Bachel-lor’s; in fact we had 500 lbs. of five eight ■ weight wool that they had none like. Consequently we will not be satisfied with less for our wool.”

On December 4th plaintiffs replied to that letter, repeating statements in their former letter to the effect that Mr. Carlton must have been mistaken in believing that his wool was of like grade or better than the wool for which Vick and Bachellor sold their shipments ; and again assuring Carlton that they would do everything possible to get the full market value for his wool, and would wire Carlton for confirmation before making a sale, with the further statement that it was to the interest of plaintiffs as well as the defendant to realize the highest price possible for the wool. On December 4th Bloodworth, the cashier, wrote plaintiffs a letter requesting them to submit an offer for Carlton’s wool, to which plaintiffs replied that they would do their best to get an offer which they could recommend accepting. On December 4th the president of the First National Bank wrote to plaintiffs calling attention to the letter written previously by Hr. Bloodworth and requesting a telegram, quoting the market price of Carlton’s wool. In answer to that request, plaintiffs wired, saying: “We are offered 37 cents for Mr. Carlton’s wool. This is the fullest market value and we advise sale. There is nothing in the situation that makes us think that fine wool can possibly be any higher.” In reply to that telegram, the bank wired plaintiffs as follows: “Do not sell Carlton wool at 37 cents,” and, upon receipt of that telegram, plaintiffs wrote the president of the bank saying that they would continue their efforts to sell the wool, but further stating that they did not believe it probable that the market would go higher. On March 5, 1929, Bloodworth, the cashier, again wrote the plaintiffs inquiring for what price Carlton’s wool could be sold at that time, to which plaintiffs replied by letter, stating that the price had declined below the 37 cents per pound previously offered, and that that price could not then be realizedj further saying: . “Why don’t you let ■us go ahead and sell the wool for the best price obtainable?” On April 10th plaintiffs again wrote Bloodworth, urging immediate! sale of the wool. On May 15th Bloodworth wrote plaintiffs requesting the best bid obtainable for the wool. On June 14th the defendant Carlton wrote another letter to the plaintiffs repeating the statement made in his former letter to the effect that Mr. Bachellor had sold his wool on the same market for 44 cents and that Carlton’s wool was the same class as Bachellor’s. On June 20th plaintiffs replied to that letter, referring to former correspondence, with further assurance that every effort would be made to realize the best price obtainable, but that there had been a further sharp decline in the wool market. On September 20th Bloodworth again requested plaintiffs to write or wire the best bid possible for Carlton’s wool. On September 25th ¡plaintiffs replied to that letter, calling attention to a decline in the market, further quoting 30 to 31 cents as the best price obtainable.

Thereafter several letters passed’ between the plaintiffs and the defendant Carlton and Bloodworth, and on March 14, 1930, plaintiffs wired the defendant Carlton: “Value your wool here today aroun'd 25⅜. Can see nothing in future to warrant holding longer. Shall we use our best judgment in selling your wool?” On March 22, 1930, Carlton wrote the plaintiffs again complaining of plaintiffs’ failure to sell the wool immediately upon its arrival in Boston, with the further statement: “I had some friends that shipped some cars at the same time to Boston, and one sold his car at 42⅜ and the other at 44⅜, and they received remittances promptly,” but with the further statement: “Under the above conditions, do just as you like about it, as I am sustaining a big loss at this end of the line and I consider that the damage to me was caused by the neglect of your company.” On April 22d plaintiffs wrote Carlton stating that the customer who had previously offered 26 cents had withdrawn the offer, but “by splitting the shipment we were able to sell by far the larger part of it at 27⅜ and the major portion of the balance at 21⅜. We enclose herewith statement of the account, showing balance due us as of today of $2855.-76, for which amount we should like to have you send us your cheek or make some satisfactory arrangement about the payment of this balance due us.”

It thus appears that the letters and telegrams quoted above, and which were introduced in evidence by counsel of both parties, contain substantially the same facts as the proffered testimony of Carlton and his two witnesses, Bachellor and Vick, which was excluded upon plaintiffs’ objection; and therefore the exclusion of that testimony would not present reversible error. Longenecker v. Ward County Water Improvement District (Tex. Civ. App.) 8 S.W.(2d) 306, and decisions there cited; Ketch v. Weaver Bros. (Tex. Civ. App.) 261 S. W. 380; Matlock v. Glover, 63 Tex. 231; 17 Tex. Jur. p. 443.

Moreover, the primary basis of defendant’s allegations that plaintiffs were guilty of negligence in handling the wool was the allegation that, at the time it was received in Boston, its market value was 44 cents a pound gross, and coupled with that allegation was the further allegation that plaintiffs were guilty of negligence in not promptly informing him of that market value when they received the wool on July 15th. By special issue No. 1 the court submitted the question whether or not after receipt of the wool plaintiffs exercised ordinary diligence in offering the same for sale prior to September 4, 1928, and the jury returned an affirmative finding on that issue which was in plaintiffs’ favor. The court also submitted special issue No. 2 inquiring whether or not in the usual course of business the plaintiffs within a reasonable time after the receipt of the wool could have found a purchaser for it at a price of 42 cents a pound on the Boston market. However, the court further instructed the jury that they need not answer that issue in the event they had already made an affirmative finding on issue No. 1, and the jury made no finding on issue No. 2. It thus appears that special issue No. 2 was expressly excluded from the jury as a result of an affirmative finding on issue No. 1, and the defendant did not except to that instruction, and therefore must be held to an approval thereof. Article 2237, subd. 3, Rev. Statutes.

The instruction presenting the issue of negligence was in the nature of a general charge, involving the allegation that, when the wool was received by the plaintiffs, its market value was 44 cents a pound gross, or 42 cents a pound net, and that a person of ordinary prudence would have informed himself of that market quotation, and would promptly have notified the defendant below. However, no objection was made to issue No. 1 on the ground of multiplicity of issues.

In defendant’s cross-action there were further issues tendered as follows: That, had the defendant been notified by plaintiffs that the market value of his wool was 44 cents a pound gross, he would have directed them to sell at that price; and that they would have been able to realize that price after receiving such instruction. It cannot be said that the record shows conclusively that defendant would have accepted that price had he been notified, as testified to by him, since, as shown in his letters to the plaintiffs, he believed that his wool was of a better quality than the wool sold by Vick and Baehellor at 44 cents a pound; and the further statement in his letters to the plaintiffs that he thought his wool was worth 45 cents a pound. Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447; Burleson v. Tinnin (Tex. Civ. App.) 100 S. W. 350 (writ refused) and authorities there cited. Nor can it be said that it was conclusively shown that plaintiffs could have realized 44 cents a pound had they been authorized by the defendant to accept such an offer, since, as shown by plaintiffs’ evidence, the market for wool of the grade of defendant’s wool was declining all the while, with little demand for wool of that grade, and further that it was exceedingly difficult to find a buyer who would be willing to wait for instructions from an owner to accept an offer; and by reason of that uncertainty plaintiffs repeatedly requested of defendant authority to sell on the open market at the best price obtainable without waiting for instructions from the defendant; and it further appearing that the market price of the wool in question declined from 37 cents to 36 cents a pound before plaintiffs could get a reply from defendant advising a sale at 37 cents.

Those issues are separate from the issue of negligence but supplemental* and in-' eidental thereto, and therefore under the doctrine announced in Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, 1085, a finding in plaintiffs’ favor on one or both of those issues will be implied if such findings are necessary to support the judgment rendered. If those issues could be construed as'presenting separate and independent grounds of recovery, then they were waived by the appellant under the doctrine of the same case and decisions cited in support thereof, since they were not submitted nor requested to be submitted, and no findings thereon were made by the jury.

And it is to be noted further that, even if his pleadings warranted it, defendant’s recovery on his cross-action could not have exceeded 6 cents a pound, that being the difference between 44 cents, which he alleges could and should have been realized, and 38 cents, for which he was given an opportunity to sell, and which plaintiffs urged him to accept, but which he refused.

Accordingly, the judgment of the trial court is affirmed.

LATTIMORE, J.

(dissenting).

It being shown that the time of shearing is vital, and no evidence being offered to show that Bachellor’s wool was sheared the same as Carlton’s, I believe Bachellor’s testimony was correctly excluded.

I agree with my associates that it was error to exclude the testimony of Vick.

I do not agree that the error was harmless. The introduction of the letters containing hearsay statements about the price brought in sales made by strangers to the suit was inevitable because the correspondence was vital on the dealings between the parties to the suit. That the letters contained statements which might be given improper weight on some other angle of the ease and to say that the jury might have so considered such statements is to assume that the jury would do something they had no right to do, and which the record nowhere shows they did do. Original testimony of other individual sales would not have been allowable to prove market value, and I feel we ought not to assume that the fact that such testimony crept in under cover of the history of the transaction will give it respectability, so that the jury would consider it when they ought not to have, ¿nd’ relieve the appellant of his right •to present the best and legal evidence. Dallas Consolidated Electric St. R. Co. v. Black, 40 Tex. Civ. App. 415, 89 S. W. 1087; Northern Texas Traction Co. v. Jenkins (Tex. Civ. App.) 266 S. W. 175, 177. The letters nowhere cover the important part of Vick’s testimony — the market, value as drawn from reading the daily market quotations.

Moreover, those statements were written when their author was not under oath, when his writing of them imports no legal verity, when he was free as far as the penalties of perjury are concerned to make any statement in the letter he chose, whether true or false. The considerations lead me' to believe that we cannot say that the letters cure the error complained of.

Neither do I believe that the error is waived by the condition of the charge. The appellant makes no complaint, in this connection, with the charge, and is willing to rest his case on it as written, provided he can get his proper evidence to the jury. My brethren say the issue of the appellant’s consent to a sale at 44 cents is presumed found against him if auxiliary to the issues submitted, or is waived if an independent ground of recovery.

The court did not make any finding on an “independent issue” not submitted to the jury to write the judgment entered.

The writer believes the case of Ormsby v. Ratcliffe, supra, a valuable contribution to the Texas court law. All that it decided was that a court might not, on independent issues, make a surprise holding -a “judgment in the face of the issues submitted, and regardless of the findings by the jury.” It is interesting that Ormsby v. Ratcliffe was reversed and remanded (not rendered) because the trial court did not require a jury decision of those independent grounds of recovery or defense. But the majority opinion in effect proceeds to render this judgment on that holding. They say the error committed would otherwise cause us to reverse this cause, because with that evidence the jury might not have an-' swered in favor of appellant the questions submitted. With that evidence the verdict of the jury might have been for defendant. With such a verdict for appellant in our hands, we would now proceed to enter judgment against the appellant because the issue of consent by defendant to a sale at 42 cents a pound is not submitted to the jury. This, it seems to me, is interpreting Ormsby v. Ratcliffe to hold the very thing it forbids.

Let us now take the other angle; namely, that this issue of consent is auxiliary. In such a view, Carlton had'in his cross-action only one ground of recovery, to wit, the negligence of the appellee. If so much of that ground of recovery as was submitted to the jury had been answered by it favorable to Carlton, as we must assume in this court they would, receiving the evidence improperly excluded, the trial judge could not then make a finding contrary to it on a disputed issue of fact which would have nullified that verdict. Ormsby v. Ratcliffe says such unrequested issue “could not form an independent and original basis for the judgment.” “The construction contended for would * * * not only make uncertain jury trials, but in many instances be a denial of a trial by a jury.” This evil, thus acutely avoided by the holding in the Ormsby Case, is the very thing my associates unwittingly allow to be visited on Carlton. He would have had a verdict (we assume) with his proper evidence before the jury, but we nullify that verdict by assuming that the court made a finding on an unrequested disputed auxiliary issue, which destroyed the effect of the answers of the jury.

The life and vigor of the Ormsby opinion is an unsubmitted issue, consistent with the issues necessary to recovery and found by a jury, should be deemed found by the court in such a manner as to support the judgment, but as provided in the statute only in support thereof.

We assume the court made a finding on disputed fact which destroys the verdict we are bound to assume the appellant could have gotten with his evidence properly admitted.

If the most that could have been done in such case is to reverse and remand for another trial, then appellant is being deprived of that other trial by the interpretation of the majority.

The great respect I have for the learning of my associates and my own brief experience in these duties has caused me some doubt as to the propriety of a dissent, but, believing that we face a dangerous trend in the numerous interpretations of Ormsby v. Ratcliffe, I feel impelled to register this dissent.


author: BARCUS, J.

text:
    PERKINS DRY GOODS CO. v. DENNIS et al.
    No. 1293.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Rehearing Denied Dec. 22, 1932.
    Wear & Wear, of Hillsboro, for appellant.
    Collins & Martin, of Hillsboro, for appel-lees.
   BARCUS, J.

Appellant instituted this suit against ap-pellees to recover $339.41. It went to trial on an. amended petition filed April 12, 1932. On the same date appellees filed their amended answer in which they alleged that they had filed their voluntary petition in bankruptcy and that said petition was still pending in the bankrupt court, and that appellant’s claim had been listed as one of their debts in the schedules filed by them in the bankrupt court. They prayed that the appellant’s suit be abated until the bankrupt court had finally adjudicated their petition and had determined whether they\vere entitled to their discharge In bankruptcy.

The cause was tried to the court, and resulted in judgment being entered abating appellant’s suit, and the court further in its order ■dismissed the cause from its docket.

Appellant contends that the trial court erroneously abated its suit. From appellees’ ¿pleadings and testimony offered in support thereof, it is apparent that their request and' ■prayer was that proceedings be stayed in the trial court until they could have their petition in bankruptcy acted upon and obtain their discharge, and, if the trial court’s judgment had gone no further than that, there would have been no error.

Section 11 of the Bankruptcy Act of 1898 (11 USOA § 29) provides, in substance, that a suit filed upon a claim from which a defendant could obtain a release by being discharged in bankruptcy shall be stayed until after the bankrupt court shall act upon his right to have a discharge where a petition in bankruptcy has been filed. The record in this ease shows without dispute that appellees had filed a petition in bankruptcy and that appellant’s •claim had been listed as one of their debts in the schedules as filed in said court. In its ■petition appellant was not claiming any lien on property.. While the transcript does contain a writ of garnishment which was served ■on G. L. White on October 7, 1931, there is nothing in the record to show whether White 'had filed any answer or whether any funds had been impounded or that appellees were ■seeking to impound any funds thereby.

6 Tex. Jur. 49, after quoting paragraph 11 •of the Bankrupt Act, states: “A State court in a proper case and upon a proper plea calling to its attention the pen.dency of bankruptcy proceedings, should stay a suit against the ■debtor in the State court.”

Almost the identical question involved here was decided in the case of Elwood Grain Go. v. Walker Grain Go. (Tex. Oiv. App.) 254 S. W. 223. In said case the court held that the -trial court should have entered an order staying proceedings in the state court until the defendant’s application for discharge in bankruptcy had been acted upon by the bankrupt ■court. In said opinion it was further held, however, that the trial court should have entered an order staying further proceedings rather than dismiss the cause from the docket.

3 R. C. L. 263, in discussing the quoted provision of the bankruptcy statute, states: “It is a provision primarily for the benefit of the bankrupt that he may be enabled to avoid being harassed in both courts at the same time with regard to such debt.”

7 O. J. 349, states the rule as follows: “The proper practice appears to be that the application for a stay should be made in the court in which the action is pending, which should make the necessary order staying the proceedings.”

Under the authorities above quoted, we think the court properly entered its order staying the proceedings in said court until appellees could obtain action from the bankrupt court on their plea for a discharge.

The trial court was in error, however, in dismissing the cause entirely from its docket. Its order should have been only to stay tbe proceedings.

The judgment of the trial court dismissing appellant’s cause of action is reversed, and this cause is remanded to the trial court.


author: GALLAGHER, C. J.

text:
    FIDELITY UNION CASUALTY CO. v. STATE.
    No. 1248.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1932.
    Rehearing Denied Dec. 22, 1932.

      Collins & Houston, of Dallas, for appellant.
    James Y. Allred and Thomas S. Christopher, both of Austin, and Cox & Brown, of Temple, for appellee.
   GALLAGHER, C. J.

This appeal is prosecuted by Fidelity Union Casualty Company., a corporation, from a judgment against it in favor of the state of Texas on a contractor’s bond upon which it was surety. The state entered into a contract with K. S. Hull, Jr., to improve a public highway in Bell county. By the terms thereof, said Hull'agreed at his own proper cost and expense to make the stipulated improvement in accordance with his proposal and plans and specifications attached thereto, to begin the work on or before July 27, 1927, and to complete the same within sixty working days. The state, by the terms of said contract, agreed, in consideration of the full and true performance by said Hull of the work stipulated, to pay to him the prices set forth in said proposal in the manner provided in said specifications.' Hull’s proposal contained a stipulation that all material owned by the state on hand at the site of the improvement should be used by him in. making the same, and that the price thereof should be deducted from the final estimate. The only reference in the attached proposal and specifications to the manner in which payments should be made to Hull was that the same should be upon a unit basis at the respective prices per unit stipulated in his proposal. To secure the performance of said contract, said Hull, as principal, with appellant, Fidelity Union Casualty Company, as surety, executed and delivered to the state a bond in the penal sum of $11,183.30, the total estimated cost of such improvement, conditioned that he should well, and truly perform all the terms and conditions of said contract within the time therein mentioned, and pay all lawful claims for labor performed and material furnished in making such improvement. Neither said contract, said proposal, nor said plans and specifications contained any provision for partial payments on the contract price for making such improvement. The state, through its engineers, on July 25, 1927, issued its estimate No. 1, which showed that the total amount of work done to that date was $1,598.10. It retained $159.81, being 10 per cent, of said amount, and paid to Hull the sum of $1,438.-29, the remainder of the estimated value of the work done by him at that time. The state, through its engineers, on August 25, 1927, issued its estimate No. 2, which showed ■that the total amount of work done to that date was $5,801.70. It retained $580.17, being 10 per cent, of said amount, deducted $1,-438.29 previously paid to Hull, and paid to him the sum of $3,783.24, the remainder of said estimate. The state, through its engineers, on September 25, 1927, issued its estimate No. 3, which showed that the total amount of work done to that date was $11,-703.76. Said estimate further showed that previous payments to Hull amounted to $5,-221.53, that the state had furnished to him material of the value of $2,356.44, and that, after retaining $1,170.37, • being 10 per cent, of the total amount of work done to that date and deducting previous payments and the value of material furnished, a balance of $2,-955.44 was due Hull. The state, however, retained only said sum of $1,170.37, deducted previous payments amounting to $5,221.53, and paid to him the remainder, $5,311.86, notwithstanding he then owed the state said sum of $2,356.44 for material furnished by it and used by him in the performance of his contract. The state thereafter, on the 19th day of October, 1927, through its engineers, issued what it termed a final estimate on said work. The several items of work performed, the contract price, and the amount due therefor to the contractor, were identical with like items in the estimate of September 25, 1927, with the exception of a single item listed as “additional force account as per statement attached, $220.42.” The statement attached showed that said account accrued for extra labor furnished and performed by Hull and rendered necessary by excessive floods. All the same was furnished and performed after the estimate of September 25, 1927, had been issued and approved. There was no provision in the contract requiring the performance of such work. Said so-called final estimate showed that the state owed Hull $1,170.37, the aggregate amount theretofore retained by it on said three prior estimates, and said further sum of $220.42 for said extra work, or a total of $1,390.79. Hull then being still indebted to the state in said sum of $2,356.42 for the material furnished by it and used by him in performing his contract, no payment was made to him on said estimate. His indebtedness to the state exceeded the amount due’ him according to said estimate in the sum of $965.69. Apparently demand for repayment of said sum was made, and Hull wrote that he would be in a position to make such payment when his work was finally accepted. He never paid any part thereof, and was subsequently adjudged a bankrupt.

The state instituted suit against Hull as principal and appellant as surety on said bond to recover said balance of $965.69, with legal interest thereon. There was a trial to the court. No verbal testimony was introduced. The case was submitted wholly on the records of the highway department, aided by a single written stipulation. The pertinent fact contained therein was that the “Superintendent of Aid Projects” had issued his voucher to Hull for the full amount due upon the third estimate above referred to without deducting said amount of $2,356.44 due the state for material used by him, because said estimate was not a final one. The court found that Hull had been discharged in bankruptcy from liability for the debt sued for, and rendered judgment in his favor, but rendered judgment in favor of the state against appellant for the sum sued for, with legal interest from December 3,1927, and all costs of suit.

Opinion.

Appellant presents assignments of error in which it assails the judgment rendered against it on the ground that the testimony showed conclusively that it was discharged from liability for the price of the material furnished by the state and used by Hull in performing his contract, because the state failed to retain in its hands out of the contract price sufficient funds to pay the same. The terms of the contract pertinent to this contention have been hereinbefore recited. The state had on hand, at the site of the improvement which Hull agreed to make, certain road-building material amounting in value to approximately one-fourth of the amount to be paid for the whole job when completed. Hull agreed that the state should retain the stipulated value of said material out of the consideration which it agreed to pay him for performing such contract. He further agreed to complete the work stipulated within sixty working days. No time for making payment for said work was specified. The contract merely provided that the consideration stipulated therein should be paid him for “the full and true performance of said work.” Had successive estimates and partial payments thereon been contemplated, the contract should have contained a stipulation providing therefor. Acts 39th Leg. (1925) c. 186, § 13 (Vernon’s Ann. Civil St. art. 6674m). When successive estimates and partial payments are authorized by the terms of the contract, it has been f requently held that a strict compliance with such terms is reguired and that a failure to comply therewith relieves the surety from liability. Williams v. Baldwin (Tex. Com. App.) 228 S. W. 554, 557, par. 3; Ætna Casualty & Surety Co. v. Russell (Tex. Com. App.) 24 S.W.(2d) 385, 387, 388, pars. 1 and 2; Ætna Casualty & Surety Co. v. Robertson Lumber Co. (Tex. Civ. App.) 3 S.W.(2d) 895, 898, par. 2, and authorities there cited; Park Presbyterian Church v. Wm. Cameron & Co. (Tex. Civ. App.) 38 S.W.(2d) 901, 902, par. 3. There is no contention that appellant consented to the partial payments made to Hull nor that it is in any way estopped to urge the same as grounds for discharge from liability herein. Since the issuance of said estimates and the partial payments of the contract price made thereunder were voluntary on the part of the state, it remained its duty throughout to retain the price of 'the material so furnished by it out of the consideration promised for the performance of the contract. Apparently the work contemplated by the original contract was in fact completed when the state issued said third estimate and paid Hull thereunder more than twice the price of the material so furnished him. If so, the mere fact that its engineers did not make said estimate in the form of a final one nor call it such did not release it from its contractual obligation to retain the amount due for material out of the consideration promised Hull for the performance of his contract by deducting said amount from such estimate before the payment of the same. See authorities above cited, and also the following: Indemnity Insurance Company v. Bassett (Tex. Civ. App.) 299 S. W. 714, 716, par. 1 (writ refused); First National Bank v. Alexander et al. (Tex. Civ. App.) 4 S.W.(2d) 298, 301, par. 4; Hatch v. First State Bank (Tex. Civ. App.) 270 S. W. 1093, pars. 1 and 2; Security State Bank v. Dawson (Tex. Civ. App.) 261 S. W. 821, 823, par. 2; Lee v. First National Bank of Purdon (Tex. Civ. App.) 254 S. W. 394, 397, par. 7; Womack v. Davidson (Tex. Civ. App.) 242 S. W. 1107, 1108, par. 2; Kempner v. Patrick, 43 Tex. Civ. App. 216, 95 S. W. 51, 53; Kiam v. Cummings & Son, 13 Tex. Civ. App. 198, 36 S. W. 770; 27 Am. & Eng. Ency. of Law (2d Ed.) p. 516.

The judgment of the trial court is reversed, and judgment is here rendered that the state take nothing herein and that appellant recover its costs.

On Motion for Rehearing.

The judgment of the trial court, in accordance with our original opinion, was reversed and judgment was rendered that appellee take nothing herein. Appellee has filed an earnest motion for rehearing, duly verified, in which it shows that the plans and specifications, which by the terms of the contract between the contractor, Hull, and appellee, were made a part thereof, contained the following provisions:

“9.10. Partial Payments. At the earliest possible date after the 1st day of each month, the engineer will make current estimate in writing of the materials in place complete and the amount of work performed during the preceding month or period and the value thereof at the unit prices contracted for, as shown in proposal and contract. * * * From-the total of the amounts so ascertained shall be deducted ten per cent, to he retained until after the completion of the entire work to the satisfaction of the engineer, and ninety per cent, of the amount so ascertained shall be paid to the contractor. ⅜ ⅜ *
“9.12a. The engineer shall, as soon as practicable after the completion of this contract, make a final estimate of the amount of work done thereunder and the value of such work, and the party of the first part shall at such time, within thirty days from and after the date of such estimate, as the State may elect, pay the entire sum so found to be due thereunder, after deducting therefrom all previous payments and all amounts to be kept and all amounts to be retained under the provisions of this contract.”

The parties hereto agreed that the statement of facts filed herein contained a full, true, and correct statement of the facts, and all the facts, adduced upon the trial of the cause, and the same was thereupon duly examined and approved by the trial judge. We are restricted, in determining whether the judgment of the trial court should be affirmed or reversed, to consideration of the facts embraced in said authenticated statement. We therefore conclude that our reversal of the judgment of the trial court must stand. It is, however, the rule that, when a judgment is reversed and it appears that the case has not been fully developed and that justice may be better subserved by remanding the cause, the court will do so, rather than render judgment. Texas Employers’ Ins. Ass’n v. Herring (Tex. Com. App.) 280 S. W. 740, 741, and authorities there cited. It is proper to remand the cause in such cases to afford a party an opportunity to amend his pleadings or to supply additional testimony. Limestone County v. Robbins (Tex. Civ. App.) 42 S.W. (2d) 159, 160, par. 1, and authority there cited.

The fact that the contract introduced in evidence at the trial contained no provision for successive estimates or partial payments thereon was stressed in our original opinion in this case. We, however, called attention therein to the fact that a comparison of the third estimate issued to the contractor with the so-called final estimate issued to him indicated that the work embraced in the contract was fully completed at the time said third estimate was issued, and that the only additional item embraced in such final estimate was for extra labor furnished and performed after the actual completion of the work stipulated in the contract. Should the second excerpt above quoted from the contract between Hull and appellee be introduced in evidence upon another trial, and should it be found from the evidence before the court at that time that the work provided for in said contract was fully completed at and prior to the time the third estimate was issued, then said estimate should have been a final one and appellee was required by the express terms of such excerpt to deduct from the amount shown thereby “all previous payments and all amounts to be kept and all amounts to be retained under the provisions of this (said) contract.” It could not arbitrarily issue and pay a partial estimate when it was required by the terms of the contract to issue a final estimate and make final settlement thereon. See authorities cited in original opinion, and especially the last group of such authorities.

The judgment of this court is so modified as to remand the cause to the district court for another trial.


author: CONNER, C. J.

text:
    SHELTON et al. v. JARRELL et al.
    No. 12661.
    Court of Civil Appeals of Texas. Fort Worth.
    April 9, 1932.
    Rehearing Denied Oct. 1, 1932.

      O. P. Engelldng, of Electra, for appellants.
    Taylor, Muse •& Taylor, of Wichita Falls, for appellees.
   CONNER, C. J.

Appellees Jarrell and Milford instituted this suit in a district court of Wichita county against appellants A. H. and W. J. Shelton to recover damages in the sum of $3,780, for the conversion of certain personal property specified in exhibits attached to their petition.

The plaintiffs alleged that on or about June 20, 1030, by virtue of a purchase of the leasehold rights of one E. H. Logan, together with personal property owned by him and described in Exhibit A of the petition, and also by virtue of a formal lease from the defendants, W. J. and A. H. Shelton, who were the owners thereof, the plaintiffs took possession of lots 13 and 14 in block 45 of the town of Electra in Wichita county upon which was a gasoline and oil filling station and for the use of which plaintiffs were to pay a rental of $80 per month. The further allegations are to the effect that the plaintiffs continued to operate the station for about six weeks, when they were forced by circumstances to discontinue further operations of the station. The lease was surrendered by them, and they left upon it property that had been purchased from Logan, as well as other personal property owned and taken with them at the time of taking possession of the value of $3,156, and described in Exhibit B. It was admitted that the plaintiffs were indebted to the defendants in the sum of $100 for unpaid rents and that they had given Logan a mortgage for $500 on the property purchased from him.

It was further alleged that on or about thei 26th day of August, 1030, the defendants “without any reason, justification or cause” therefor went to said filling station and took charge and took into their possession all of the property described in Exhibits A and B and converted the same to their own use and benefit. Wherefore, they prayed for a recovery, etc.

The defendants in an amended answer pleaded demurrers, general and special denials, and specially to the effect that about the middle of December, 1928, they had leased the filling station in Question to E. H. Logan for the term of one year, at a rental of $100 per month in advance; that when defendants visited the premises on or about December 14, 1929, for the purpose of collecting rent, they found that Logan had, without notice to them, abandoned the premises and delivered the same to the plaintiffs, together with certain personal property that had been used by him in operating the station, whereupon defendants released the station at a monthly rental of $100 per month to the plaintiffs who continued to operate it until about June 20, 1930, when they ceased to so do in their own name and right, but continued as mere agents of the Magnolia Petroleum Oompany, to which defendants again leased the premises.

The defendants further alleged that at th2 time of Logan’s abandonment of the lease he was indebted to them for rentals in the sum of $250; that at the time plaintiffs ceased to operate the station for themselves and the Magnolia Petroleum Company took charge under the lease to it, they (the plaintiffs) were indebted to defendants for unpaid rents in the sum of $100.65, for all which rents they had the landlord’s lien upon the properties referred to in plaintiffs’ petition, and to recover which and to enforce said lien defendants had instituted a suit in the county court of Wichita county against said Logan and thei plaintiffs, which was still pending undisposed of; that soon after said lease to the Magnolia Petroleum Company that company demanded that all property listed in the plaintiffs’ petition and alleged to have been converted be removed from the filling station premises, whereupon defendants, not knowing the whereabouts of Logan or of plaintiffs who also had abandoned the lease, removed said properties across the street to a house of their own, where it had since remained in good condition. Defendants further pleaded that said suit in the county court be consolidated with the one before the court and that they be permitted by way of cross-action to replead and establish the amount of their unpaid rents and landlord’s lien.

The plaintiffs replied by general and special denials, and particularly excepted to that portion of the defendant’s answer which sought to consolidate the suits, replead, and by cross-action establish rents, etc., admitting that they were indebted to defendants in the sum of $100 for unpaid rents. The court sustained this special exception and submitted the case to the jury which had been impaneled upon special issues, which, with the answers of the jury thereto, read as follows:

“1. D'o you find from a preponderance of the evidence that the defendant on the 25th day of August, 1930, took possession of the property in question in said filling station, with intent to deny the plaintiffs’ possession of the same at any time they wanted it? Answer: Yes.
“2. Find from a preponderance of the evidence the reasonable cash market value of the property in question on the 25th day of August, 1930, in Electra, Texas. Answer in dollars and cents. Answer: $1175.00.”

The court further found from the undisputed evidence that the writ of sequestration had been wrongfully issued and that the plaintiffs were due defendants $100.65 for unpaid rents, and accordingly rendered judgment for plaintiffs for the sum of $1,074.35, with interest thereon at the rate of 6 per cent, per annum from the 30th day of April, 1931, together with all costs of suit, and from this judgment the defendants have duly prosecuted this appeal.

As the ease is presented on this appeal, we find it necessary to discuss but a single one of the numerous assignments of error. As already indicated, the defendants below pleaded, in substance, among other things, the institution of a suit in the county court against Logan and the appellees in this case to foreclose the landlord’s lien on the property involved, and they prayed the court for permission to consolidate the county court case with the one before the court, and that they might be permitted to replead and establish the indebtedness of the parties and the right to the lien. Error is assigned to the action of the court in refusing this request and we think the assignment must be sustained. It is manifest that the defendants as landlords were interested in the property and in its preservation to the end that it might be subjected to the payment of rentals alleged to be due, but the defendants did not allege that the taking of the property involved was for the mere purpose of protection and offer its return subject to their liens; on the contrary, they denied the right of plaintiffs and failed to tender a return of the property, and hence they may be treated as having converted the property, especially in view of the jury’s finding that it' was seized and removed with “intent to deny the plaintiffs’ possession of the same at any time they wanted it,” and there is no assignment attacking this finding as unsupported by the evidence. See Bridgeport Mach. Co. v. Geers (Tex. Civ. App.) 36 S.W.(2d) 1047; Hofschulte v. Panhandle Hdwe. Co. (Tex. Civ. App.) 50 S. W. 608. But it was held in Schwulst v. Neely (Tex. Civ. App.) 50 S. W. 608, 609, quoting from the head-notes, that: “Though a landlord, who disposes of his tenant’s property left in his possession after the latter vacates the premises, without proceeding to foreclose his landlord’s lien thereon, is liable to an action of conversion, he may plead as a set-off pro tanto the amount due him for rent, as he came into possession of the property in a lawful manner.”

The ruling so announced, we think, may be applied as at least equitable under the circumstances of the ease before us. Indeed, the plaintiffs who sue for conversion seem to so recognize, for they themselves tendered as an offset to their recovery for the value of the property the $109.65 which they alleged was due from them as rent. The defendants alleged that Logan also was indebted to them for unpaid rent in the sum of $250, to secure which they had the landlord’s lien on certain of the property listed by the plaintiffs as having been converted. Logan was not a party and hence not bound by any judgment in this ease. The plaintiffs in their pleadings admitted that they had purchased a part of the ¡property involved from Logan, this property being particularly specified and set out in an exhibit to plaintiffs’ petition. They also alleged that that property had been purchased from Logan, and to secure a part of the purchase price they had executed and delivered to Logan a mortgage thereon for $500. It nowhere appears that plaintiffs have discharged the mortgage by payment of the debt, and to permit them to recover the full value of the property so acquired from Logan without payment or credit given for the Logan mortgage and the defendants’ landlord lien, and thus open the door, perhaps, to another suit against defendants by Logan for conversion, is manifestly inequitable.

In Jones on Mortgages, § 1367, p. 1057, it is said: “In determining who are the proper and necessary parties to ai bill to foreclose a mortgage, two fundamental principles in all proceedings in equity must be kept in view; first, that ño'one shall be adjudged as to his rights except he is before the court; and second, that the rights of all persons interested in the object of the suit shall be provided for in the determination of it. It is the constant aim of a court of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who arq compelled to obey it, and to prevent further litigation.”

We therefore think the court erred in refusing to permit the defendants to replead, make Logan a party, and have the right and equities of all the parties concluded by the judgment to be rendered. Of course, technically, there could be no consolidation of the suit in the county court with that of a district court; but we think the defendants’ application may be treated as an abandonment of the suit in the county court with reliance upon rights to be set up in a repleading. This is especially true in view of allegations, in the pleadings of the plaintiffs, to the effect that the county court was without jurisdiction of the suit by the defendants therein pending.

Numerous other assignments have been duly considered; but in view of a reversal of the judgment and of another trial, the questions may not be again presented or involved. We will not therefore discuss them, but finally conclude that the judgment of the trial court should be reversed, and the cause remanded for another trial not inconsistent with this opinion.


author: WALKER, C. J.

text:
    NATIONAL AID LIFE ASS’N v. BAILEY.
    No. 2293.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 15, 1932.
    Rehearing Denied Dec. 21, 1932.
    Davis, Avery & Wallace, of Center, and F. B. Owen, of Oklahoma City, Okl., for appellant.
    Anderson & Lewis, of Center, for appellee.
   WALKER, C. J.

This was a suit by appellee, Dona Bailey, widow of J. E. Bailey, deceased, against appellant, National Aid Life Association, for $1,000, the principal amount of a life insurance policy issued by appellant on the life of J. E. Bailey, in which appellee was named as beneficiary. The allegations of the petition were that the policy was duly issued; that J. E. Bailey was dead; and the other pertinent allegations to state a cause of action, with prayer for appropriate relief. The fifth paragraph of appellee’s petition was as follows: “That long prior to the issuance of the policy sued on herein the said J. E. Bailey was a member of the home or local Benefit Association with headquarters at Shelbyville, Texas, and known as Shelby County Benefit Association, and whether or not the true name is given, it was the Local Mutual Insurance Association at Shelbyville, Texas, and that subsequent to his being admitted to the Shelbyville Association and prior to the issuance of the policy sued on herein the said J. E. Bailey, at all times being in good standing in the said Shelbyville Association. The said defendant herein by due contract took over and merged the- said Shelby County Benefit Association of Shelbyville, Texas, into the organization of the defendant and contracted and agreed to take over all members of said Shelbyville Association on the basis of the application in and to the said Shelbyville Association; and the said defendant agreed further to take over all members of the Shelbyville Association who were then in good standing in said Shelbyville Association, regardless of their then age and regardless of their then present physical condition, and the only prerequisite of taking said members into the defendant organization was whether or not the party was at that time in good standing and held a valid policy of insurance in the Shelbyville Association, and that after such contract and merger between the defendant and the iShelbyville Association, the agents of the defendant were instructed to and- in fact did issue policies of insurance and especially a policy of insurance, in lieu of the membership and policy theretofore held in the said Shelbyville Association, and that said admittance into the defendant Company was not based on any new application or the present condition of the applicant, but solely upon the then standing of the applicant in the said Shelbyville Association, and said defendant made due investigation of all the conditions and circumstances before the issuance of the said policy from their association to the members of the said Shelbyville Association and they are here and now estopped from denying said facts.” In addition to the general demurrer and general denial, appellant specially pleaded certain specific warranties under which it alleged the policy was issued, to wit: (a) In the application for the policy J. E. Bailey represented he was in good health when, in fact, he was in bad health, suffering at that time with a disease that proximately resulted in his death; (b) he represented he was born in 1876 when, in fact, he was born in 1870. On conclusion of the evidence the jury, under instructions from the court, returned a verdict in favor of appellee, upon, which judgment was duly entered in her favor.

Opinion.

It was shown beyond question that J. E. Bailey was in the last stages of Bright’s disease when he made the application upon which this policy was issued. It was also clearly established that he was born in 1870 instead of 1876. However, appellee would sustain her judgment on the theory that she established, as a matter of law, the issues pleaded by her in the fifth paragraph of her petition, as copied above. We agree with ap-pellee that proof of the facts thus alleged, together with the other necessary- evidence, about which there is no question, would have established her case. We mean by this that if appellant contracted to take over J. E. Bailey’s insurance and to issue to him a new policy in lieu of his old policy, on the basis of the application upon which the old policy was issued, it cannot now defend upon the theory that J. E. Bailey was not in good health when the new policy was issued and that his age was not correctly stated in the application for the new policy. This follows ■because, if appellant was hound to issue the new policy on the old application, it had no legal right to require a new application containing warranties relieving it of its contract. But the trouble with appellee’s theory of the case is that she did not introduce in evidence in the trial court the contract by which appellant took over appellee’s insurance, and there is no other evidence in the record developing the contents of this contract. The record is clear that appellee thought she had introduced this evidence. But, as we understand the statement of facts, and the trial court heard appellee’s contest on this issue, it affirmatively excludes the contract as evidence. Without this contract appellant established its special defenses. It follows that the judgment of the lower court must be reversed and the cause remanded for a new trial.

Reversed and remanded.