Avery v. Llano Cotton Seed Oil Mill Ass'n
196 S.W. 351
Tex. App.
1917
Check Treatment

*1 Tex.) y. COTTON SEED OIL MILL AVERY S51 ing, grounds furnish and conclude changing our views. carefully TALBOT, consider- have We rehearing The motion for rehearing, well-prepared motion ed the together ar- courteous with the forcible therewith, gument counsel in connection of the evidence and while we think state AVERY et v. LLANO COTTON SEED OIL al. supported a verdict is as would have MILL ASS’N. appellant, not it cannot be said it will of Texas. Ft. Civil Worth. support We the verdict awarded April 30, Motion 1917. On for Rehear- considered, evidence, fairly dis- believe the ing, 2, 1917.) June conflict, in conclusion and if our closes that 1. Venue Defendants —Residence of correct, respect is then —Removal After Suit. brought partners as matter of law verdict.' entitled suit was residing another in and after in their It is contended privilege one of them moved his residence to Hann in Bellis v. motion county properly brought, where suit was .the 427, Kendall, in instant overruled on an amend- petition showing when, pending case, ed the bro removal. we held that cases, gee Venue, [Ed. Note.—For other negotiations principal Cent. consummates ker’s Dig. § 127.] produced by purchaser Partnership 2. Creation —Communi- broker, latter is recover entitled ty of Interest in Profits. required compensation, contract partners If two who were to share in the rely quantum al the rule .meruit joined person, of a venture with a third proving leging value three was the reasonable established in interest holding services, in con and that is such, although was made to share Jeffries, holding Martin v. our in flict with in losses. which, 151, holds 172 S. W. cases, see Dig. principal, pending ne § Cent. 26.] broker’s when the gotiations, the sale with the <&wkey;177Secondary consummates Evidence — Evidence- broker, Grounds produced by of Admission. purchaser latter Where one of the pleading recover and entered into a (cid:127) his services. The reasonable value the point other defendants in a cattle and was transaction responsible to the for a confusion Hann & in Beilis v. was not involved furnished, of feed had been Kendall, of two the sole issue secondary evidence show the purchaser, produced aas brokers to feed consequence there is no conflict admissible. cases, Evidence, [Ed. supra. And, Note.—For other see Jeffries, and Martin v. , Dig. 557, Cent. '§§ rule announced is a conflict latter case and Goodwin — Appeal — and Error (Sup.) Gunter Prejudicial followed instant expert Admission of an book- case, keeper actu the reasons which to determine from properly charge- the books the amount of feed announcing the rule laid down ated us prejudicial able was not controlling without Jeffries Martin they their making the identical contention in Martin v. Jeffries was decided force. When the admission of the books in Gunter, decided, evidence. had not been Goodwin cases, Appeal [E'd. Note.—For see had decided the instant case it but when we Dig. Error, 3597, 3598.] Cent. §§ been. <@^637 Error Ex- urged by —Bill we re- counsel that ceptions Sufficiency—Definiteness. findings form so as a matter our “books appellants did not at- sell or of fact that plaintiff, itemized accounts and statements scales tickets and Bros, tempt taken there- the lands Brandies from,” but which does not show appellees until reduced tickets, and accounts were in scales duced fact intro- completed negotiations. successfully and in no manner identifies was so Supreme urged because the we do this ground as to be of itself indefinite overruling ruling. for the predicated upon conclusions fact. our bound Court findings would be to hold reform cases,' [Ed. see Note.—For judg- the evidence does unwilling ment, to do for the Admissibility 6. Evidence Best If stated Estoppel. Evidence — record for our no basis hold- defendants was also As presented manager the ing, issue can be Su- confusion in plaintiff’s accounts, po- defendants are in same manner were preme Court sition to invoke best evidence presented jury to this was entitled to intro- court. prove evidence to duce account. carefully considered the other Evidence, see presented grounds in the motion for rehear-

gssFor KEY-NUMBER

352 — Avery, defendants O. L. J. and Earl <&wkey;882(S) Eeror op Waiver place his had moved in evidencethe Where defendantsintroduced county, of residence to Tarrant plead- plaintiff’s account which was attached to allegation then resided. The same ing's waived their part thereof, as an exhibit and made a right plaintiff’s of its admission. fourth amended [Ed. Note.—Eor which the suit was tried. be noted here that the residence county defendant only in Tarrant was the Court, Appeal from District Tarrant Coun- overruling appellants’ plea basis for ty; Young, Judge. B.R. privilege county. to be sued Llano the Blano Cotton Oil Mill Seed As- Appellants insist against sociation J. C. and others. plaintiff’s pleadings Latting Judgment for and the named de- county side Tarrant time the suit appeal. fendant and another to instituted, change was first to Tarrant of residence appellants affirmed, county right did not affect left undisturbed. jurisdiction plea to have their McLean, Lloyd J. Llano, H. according determined the status Burns, appellants. Tay- Et. for support- suit at the time of its institution. lor, Taylor, Henrietta, Allen & John contention, have cited Miller, Wells, C. of Mineral for Ogburn-Dalchau such cases as Lumber Co. v. Taylor, App. 442, 48; 59 Tex. Civ. S. W. 126 DUNKLIN, J. The Llano Cotton Seed Oil Waits, Lasater v. 95 Tex. 68 S. W. 500. Association, partnership firm, Mill ered a Avery, 644, recov- But those decisions have no judgment against Earl J. O. L. bearing question material now $1,- B. R. for a debt der discussion. plaintiff alleged due the for cattle feed opinion that, [1] We are of the as the by plaintiff to ants, been sold to the defend- proof showed without that Lat- and from that C. and Earl ting county was a resident of Tarrant at the appealed. L. petition time the third amended was filed suit, There were other county up continued reside in that some of whom were dismissed from the suit trial, the date of merit con judgments and others secured in their favor. tention noted above. At As the issues which concerned them were in plaintiff time of such amendments could material to involved as have dismissed its suit and instituted a new parties, between the other those defendants suit, no doubt which would have will be no further noticed. county fixed the venue of the suit in Tarrant firm was the owner aof cot- against Averys two as well as Llano, ton oil mill in the town of ^eed Latting, and, if such a could have result engaged manufacturing accomplished by filing been a new products cotton seed meal and other why see no reason same result could not seed, bought cotton and used as accomplished by pleadings; be the amended fattening conjunction being possible ques difference mill, plaintiff feeding maintained taxing tion of costs ac pens persons owning leased up amendment, crued date desiring cattle and to fatten them from the a well-settled rule that even a new products alleged of the mill. Plaintiff up of action cause be set amended the value of which the suit was Carmichael, pleadings. Ballard Averys instituted was sold to the two and 355, 18 S. 734.W. who were liable therefor as Appellants insist further that the evidence was theory. rendered judg did not show that the debt favor joint obligation rendered county, The suit was instituted in Tarrant themselves and but was an individu question presented first is one of Latting alone, al their debt of that reason venue; appellants complaining that the court plea privilege should have been sus privilege erred in to tained, citing of that contention county Llano, sued which is the Ry. Mangum, T. & P. Co. v. such decisions as county of their residence. In the 617; 4 Russell & 68 S. W. Co. v. Tex. original petition, alleged that the two 75; Gog Co., Thomas 86 Heitmann gan Averys & resided Llano and at that Morrison, 119; Ste Bro. Later, time was not sued. Bank, phens S. W. 622. Nat. v. First petition, Latting tiff’s second amended party defendant, shows that and his' resi- charge alleged dence was likewise county. was the to be in Llano prod- later, plaintiff About two mill with months petition against ; filed a 82 head owned ucts feed; desired to of cattle mill was furnished that feed

<fcjFor Key-Numbered Digests cases see same and KEY-NUMBER. Tes.) OIL MILL SEED COTTON AVERT fourth over for less than their cost the amount of accounts were confused to such an plaintiff recovered Masterson, testimony they further without contradiction that view of the had no tiff members plaintiff’s books, kept by pervision evidence to show secondary there that own individual should the amount of such cost shows without nish the feed tween themselves themselves the other. the the a der selves, profits wduld between them lished; for, duke, the that fund which is that of shall as the Storey would “It “That he who is to take The But, [3] [2] Even any losses, proceeds firm cost price by operation were appellant’s assignment that case appellant’s objection, 60 Tex. 370: was, 196 S.W.—23 they support a one is assignments on of. time of independent testimony Averys. would also sustain under other price to make purpose, but complained the of testimony would fattened the venture persons, of to .share losses well as essential to between the on cattle, foregoing conclusions, as said in takes from creditors a debts.” However, was-buying feed. for the appellants the the contract court in witnesses, interest in account, and at his proceeds of is' sufficient the Latting furnished was would of law be made be divided offered judgment. because one the it following appellants joint ' offered to the account of Earl could be constitute the value cattle, must error, hand and Latting alone, cattle, par. security agreement sustain see, also, Kelley were Latting’s Cothran v. over firm refusing price an that account of it was shows further and under the su- by taking part agreement, if one alleged by appellants equally 5S: the agreement. they profits conclusion, loss was offered as to share the third and But a said the liable to losses clearly fattened, supported expense, overruled. error to the that McLeod’s quoted from for the none cattle charged Latting above .any *3 agreed of testimony it follows according loss, feed was that, as such.” Manna share Latting himself sustain receive to have profits, which feed furnished notice estab them proof after pay- fur- cost any sell the un be- an on on of of pert bookkeeper, Latting, time that Avery-Talley determine particular same, was for such known as ting testified that impossible to did services. sales tiff and tiff to inafter mission. having Latting, come other to prejudicial bookkeeper. of that the tickets the effect jection to the cattle were making that identical contention in dence, presented itemized accounts manner ed to the admission stantially, cated plaintiff’s office, which this the ground such date. correct, so far and other data was not therefrom.” The [4] [5] [6] perceive evidence of “the books 'person stenographic accounts, Complaint confused so that accounts were If, on the sales were audit was no evidence which books language sales tickets for been made noted, testified, identifies them. assisted testimony feed with another controversy were in noted below. the as insisted true. the accounts and items of introduced how could be said that who signed by McLeod, the books and also sales ruling determine from the and further that the admission the cattle in the correctness of appellants, showing accuracy after a careful who was This is made of the admission made some above is made of the work these two made to feed other cattle fact appears that, could be determined from testimony by Jackson, necessary by feed which went now under discussion. of the books evidence stated further kept controversy by appellants, and W. H. confusing is of itself a lack as witness account sued on was Jackson, introduced, data found And no F. quoted, feed scales tickets and objection from the Talley a The proven employed by which went chargeable McLeod, who did statements predicated account, accounts had be- exceptions upon controversy, performed Jackson, books objections urg definiteness the available,, assignment the assistant but books in evi at cattle. Lat- the account but tickets, by plaintiff, record by McLeod, that it was were the act were, and in defendant was made books the admission books the same audit by plain- who also majority their does showing the two him in an ex- made, plain- refers predi taken other here- sub fail the the the but ad- up. ob sufficiently already statement did not show correct fact account, Letting, cover and if quest findings. condition, foregoing With the corrections, was plaintiff for that confused the motion equity to for be caused should not in inability through to mate suffer a loss appli- proof according general rules circum- cases. Under such cable CATTLEMEN’S TRUST CO. v. CANTRELL. stances, appli- the best invoke of Civil of Texas. Ft. Worth. *4 cable, position invoke the are in no May 26, 1917.) best evidence rule otherwise VENDORAND PURCHASER —FORECLO- say are Necessary SURE ties —Defendants. Par- oe Vendor’s Lien by prove up not be allowed available, by payee best even means notes ven- secured dor’s lien corporation to a recourse indorsed them without evidence; partner should be stock, payment as for shares Ratting in- corpora- purchased and left the shares with ability produce primary evidence. notes, payment tion was secure the subsequently Furthermore, necessary party assuming not a by notes in than filed the bill of [7J to suit corporation against maker of exception to the account reference property for less sold pred plaintiff's feed sold suit the notes. appellants’ right icated, eases, see Vendor waived, because, its admission was by as shown Purchaser, record, introduced in themselves Pledge Corporations that account wdiich was attached evidence Stock —Enforcement—Evidence. enjoin disposition shares suit pleadings as an and made a exhibit corporation of stock held collateral to secure lien notes to thereof. payment of vendor’s assignments indicated, For the reasons all discharge due fore- balance hen, overruled, held of error are com- closure vendor’s support closure sale sold at fore- the land was plained of is affirmed. price. inadequate at an complaint which no Liability Bills and Notes made undisturbed. Discharge. Indorsers — discharged guaran- was not Motion for fact that notes reason tor on tho two he and hence party foreclosure in not made original opinion discussion awarding in- erred trial court restraining to the admission evidence junctive the over from relief disposing lia- of the stock or appellants’ of “the books notes. due on for the balance ble original by plaintiff, including tick- scales cases, see Bills and tak- accounts and statements ets and itemized Notes, therefrom,” excep- said that the bill of en we County Court; Montague the court manner tions to Judge. Latham, Homer B. Upon evidence so admitted. identifies the injunction J.B. Cantrell bill, find further examination Company Trust the Cattlemen’s admitted was identified as plaintiff, named others. on. state- account sued appeals. rendered, Reversed and defendant denying opinion incorrect, sought. injunction respects but in all other correct, the statement was identify does not Abilene, appellant. Kirby, W. A. H. “original tickets,” termed Donald, Montague, Jameson, Paul the statement of a reference to facts. even Worth, Templeton, Bowie, of Ft. and J. A. further is made that while the introduced in shows record evidence second defendant’s Appellee, BUCK, filed suit which the account had Company, Trust Cattlemen’s exhibit, formerly as an been attached it fur- Bowie, Tex., A. E. Bank National First the exhibit itself was intro- Phillips, ther Thomas, T. C. plaintiff. by the in evidence further them, duced enjoin each of sell- of the record sustains that con- disposing ing bering or incum- inor original opinion is, tention, accord- stock Cattlemen’s 30 shares respect. ingly, in that Tex., Company corrected But aside of Ft. held Trust corrections Bank of Bowie as col- National First payment of the first opinion secure to the lateral designated notes, 2Nos. the documents mentioned was two lien notes executed for other vendor’s properly overruled of five series appellee part payment given Ratliff C. W. conveyed by appel- land described our of certain see same KBY-NXJMBBR ®=»For