*1 292 contention, to be without is believed Fidelity merit, v. Join Co. and is overruled. Bonding 806; (Tex. App.) S.
er Civ. 178 W. Fidelity 893; Bryant (Tex.) S. W. 240 Co. v. Getzendanner, W. S. 53 Tex. v. 93 Co. 326; 14 R. C. W. 56 S. S. W. trial court erred think the We copied in the statement of his awarded not have above. He should recovery due at the sums not lee un should not he jurisdiction of retain dеrtaken to pay monthly rendering judgment English, Ins. Co. v. ments then due. Knights v. 58; Maccabees S. 72 W. 971; App; Cox, W. 60 S. Tex. Civ. Corpora Casualty Security Co. v. Union S.W.(2d) (Tex. App.) 1 South tion Civ. (Tex. Surety Civ. v. Curtis Ins. Co. western Frey 1162; Implement App.) Co. v. W. 200 S. W. think S. award when he erred further attorney’s appellee ed fees. made, seems, on allowance theory judgment could the erroneous payments monthly to become be rendered already payments due. as for due as well appellee entitled do think adjudged to than half the sum attorney’s fee, reverse and will him and remand unless a reihittltur days from this filed here within ten amount is date. filed, thе a remittitur If such to eliminate so reformed as will be above, copied portion in the statement thereof only award and as to attorney’s fees, reformed and as so affirmed. v. OIL MILL & MFG.
BARONIAN SEALY (No. 9177.) CO. Appeals of Texas. Galveston.
Court July 6, 1928.
Rehearing Sept. 25, Denied Bellviile, Edmondson, Allen B. J. E. Houston, Hannay, Krueger Duncan, both of C. C.
Bellviile,
appellee.
PLEASANTS,
This
C.
by appellant
dam-
to recover
$1,528.50
ages
in the sum of
*2
plaintiff
by appellee
for tbe
loss to
of the refusal of the
contracts
of two
breach
purchase
carry
defendant
to
7,
said contract of
from
out
of cotton seеd
ap-
$1,02S,
alleges
in
sum of
less
substance that
in
Tbe
by
agreed
$500
the amount of
plaintiff
heretofore received
pellee on October
purchase
mentioned; plaintiff
orally
appellant
has
as above
with
tracted
price informed
seed at
defendant of his
and demanded
him 50
loss
cotton
from
tons
payment
same,
per
for
defendant
failed
$39
f. o. b. cars
seed
ton
appellee accept-
county;
and refused and still fails and refuses to
that
of cotton
in Waller
house
any part
paid
deliv-
the same
for 20
seed
thereof.” The
and
tons
ed
prays
сontract,
declined to
two contracts
fur-
under said
ered
ther
accept
$1,528.50.
aggregate
carry
and refused to
sum of
demurrer,
appellant
exceptions,
In addition to
and
additional
tons
general denial, appellee
on Jan-
in
answered
to deliver under
offered
by
special plea
uary
below
and
within a reasonable
which was
estoppel,
delivery;
in which
averred
substance:
time
comply
appellee against
That
appellant
a suit
with its con-
failure to
appellant
compelled
to sell
cot-
court of Austin coun-
tract
was
ty,
open
$400.50;
a
loss of
issue of the breach
ton seed
market
1923, appellee
entered
that on
contract sued on
pleadings
appellant,
case was raised
a
and
into written contract with
evi-
dence,
agreed
a
and
verdict
terms
rendered
appellee;
appellant
appellant
in favor of
seed
all of
cotton
verdict
might
appellant
during
obtain
season of 1923
cotton
was held to have
addition to the 50 tons
contract- breached the
theretofore
was ad-
judged
paid by
appellant,
the $500
it to
ed to
sold
be
price
pay appellant
per
on said
therefor
contract. The
avers:
f. o. b.
ton
'Cars at
Station
Brookshire
county;
that at
time
the execu-
“This defendant
shows to
appellee paid appellant
tion
thereon
said contract
that in said court
said cause the defend-
$500;
the sum оf
that said written
in due time
his mo-
filed
tion for a
sidered
subsequently
which was heard and con-
contract was
amended
in all
agreement by
purchase price
oral
which the
ruled, to which said action of the court said
per ton;
of the cotton
raised to
seed was
defendant,
open
there
ready, able,
“that
has been and was
excepted,
willing
comply
with
to the Court of Civil
for the First
contract and deliver
sold
seed
Texas,
Judicial District of
but he did
January 31,
required
not
by law,
file an
on
or about
bond within
time
perfect
appeal;
and did not
that he
writing
notified
transcript
did
file
and statement of
he,
ready,
able,
Court,
them,
Ap-
nor either
willing
to deliver the
cotton seed peals
for the First
with
sold
accordance
terms
than
and since
six
months have
contract,
elapsed
entry
offered to
deliver
court of Austin
at the
same
same
Tex., the time within
file the tran-
and in
the same letter
demand-
script and the statement of facts or either or
acceptance the de-
them,
elapsed,
both of
now
rendered and
Austin
and the same cannot
f.
tons of
o. b.
fendant
at
cotton seed
cars
filed,
for that reason the
Brookshire, Tex.,
payment
and demanded
entered
contract,
provided
for same
cause in
term
wit,
amendment,
per
later
ton
of
matters and
mined
has became a final
issues
were tried
asked in the
letter that
finally
said cause cannot
immediately
deferidant
communicate
with
litigated again,
any
now
or at
here
in
other
plaintiff defendant’s desires and intentions
any
cause;
time
and issues
other
and that the matters
disposition
with
of said cot-
reference
seed;
letter, although duly
ton
that said
re- adjudicated by
ceived,
any way by
was not answered
de- county, Tex.,
case
Oil & Manu-
;
that on or about the 13th
fendant
facturing
968.”
versus
No.
waiting
February, 1924, after
reasonable
length of
time and not
defend-
any
receiving
When tbe case was called for
trial
in tbe
ant
instructions
from de-
request
disposition
court below
appellee’s
tbe
with
fendant
said cotton
the
reference
the
sold
seed on
open
price
beard and determined
market for
best
tbe
obtainable
following judgment rendered
and did
for said
thereon:
realize and receive
seed the
ton,
$29.65
$20.35
day October,
“On this
A.
less the amount which
styled
ton
the above
and numbered cause
came
making
general
contracted to
a total
to be heard. The defendant
its
special exceptions to
&Mill
demurrer
first-amended
his
urged against
petition,
on for
G. G. Baronian came
adjudi-
'county, Tex.,
trial in the
exception
defendant’s
estoppel,
of
and
cause a
indi- and
cata
cated
the case.
exceptions
rendеred, holding
that it
would
*3
requested
Thereupon plaintiff
writ-
the the
G. Baronian had breached said
said G.
adjudicata
bearing
7, 1923,
plea
and ten contract
date November
of res
to
court
hear the
’
upon
plea
plea
G.
estoppel
res and
thereof the
G.
the
of
that
said
basеd
the
of
obligated
court,
adjudicata
limine,
hav- Baronian
was bound and
and the
Sealy
Manufacturing
plea
ad-
ing
judicata
said
the
Oil Mill &
the
of
and considered
heard
up-
estoppel
together
$62.50,
at
of
interest
the
of
based
sum
the doctrine
cent,
adjudicata
limine,
plea
That
doth find rаte of 6
from said date.
of res
on the
following
filed his
thereafter
the
G.
Baronian
said
facts:
G.
the
Baronian,
plaintiff,
“(1)
in- motion for
heard and
G.
a new
the
G.
That
all
in the district court of
stituted this
day April,
county, Tex.,
original
The
was
3d
of
1924.
ruled to which
wit,
said
on the
the
Baronian,
appeal,
gave
but
of actiоn
the .
cause
of
appeal
bearing
November,
prosecuted
upon
his
there-
date
never thereafter
contract
a written
from,
therefrom, and,
nor a
of error
the
writ
done hav-
the defendant
within 'which
could be
that
“The court further finds
county
privilege ing elapsed,
plea
personal
the
of
court
said
in said cause filed a
in
of
plea
county, Tex., finding
upon
hearing
that the defend-
of Austin
said
the
cause
Baronian,
personal
having
privilege
said writ-
of
in said cause
G. G.
breached
7, 1923,
bearing
hearing
fact
the ten
November
found
that
contract
date
said
as
plaintiff’s
action as
and that
gated
the defendant was bound
obli-
status
of
cause
of
bearing
upon
Sealy
to the
Mill
contract
Oil
&
founded
written
was
date November
tiff never
Manufac-
specified
plain-
money
7, 1923,
turing
the
as
the
assailed,
thereof,
in said
for the
became
answer
thereafter
breach
county
adjudicata upon
question
the
the
as
action
final and res
to the defendant’s cause
court
specifically
county, Tex.,
plaintiff in
or the
stat-
to whether the
this case
action,
the one
the
breached
written
that
two causes
fendant
contract
this causе
the
county,
beai'ing
plaintiff
Tex., against
court of Waller
November
district
herein,
“(3)
appearing
this court
upon
the defendant
And
herein
the
that
this cause of action is
one
based
county
Tex.,
Austin-county,
was written
and a
the
court of
contract
breach thereof
Manufacturing
defendant, Sealy
the
of action between
Oil Mill &
the
parties,
Company,
not different
breach
same and'
as
upon
hearing asserted that
the
pe-
this
contract had been
herein
up
original
plaintiff,
Baronian,
against
county
cause of action as
tition was
set
action,
county,
not a nеw cause of
“(4)
in his
The
if
court further finds
same
cause,
all
ments and
having further
found
mistaken
whether the oral contract dated
parol agree-
prior
20, 1923,
merged
contemporaneous
became
or of date October
merged'
engagements
into and
into the written contract datеd November
plaintiff’s
said written contract
became concluded
bearing
that it finds
cause of
upon
as based
dated
date November
action
contract
Novem-
subject
upon
is
said 'written contract ber
to and barred
adjudicata
plea
7,1923.
plea
as
estoppel
of res
upon
plea
“(2)
based
court
a fact:
finds as-
controversy upon
Sealy
defendant,
That
amount in
said al-
Oil Mill & Manufac-
turing
leged
20, 1923,
Company,
county
contract of
date October
filed a suit
court
jurisdiction
Tex.,
day
county,
this
Austin
of of an
below the
March,
upon
cognizable
bearing
this
court.
and is
ordered, adjudged,
7, 1923,
and de-
“Wherefore it
date November
sum
for a
cent,
together
plaintiff,
$500,
creed
onian,
G. G. Bar-
with 6
interest
suit,
defendant,
nothing
that the
due to
Oil Mill
take
Manu-
facturing Company, by
Mill
&
G. G. Baro-
nian,
his,
Company,
all cofetsin
reason of
recover
the said G. G.
expended,
breaching
bearing
which action and rul-
date this behalf
ing
court the
open court, excepted
there,
herein,
“The
said G. G.
appeared
to the Court
said suit
notice
Civil
Appeals
Tex.,
per-
of the First
Judicial District
and filed his
privilege
Galveston, Tex.,
sonal
court
the same was'
the trial of
days
sustained,
hereby granted
preparing
which action and
the rul-
is
filing
ing
facturing
Sealy
appealed
cause.
of the court
of the record
Oil Mill & Manu-
Judge Presiding.”
Company duly
Manry,
“Approved:
perfected
to the
its
First
and
Court of
Civil
Galveston,
fully supports
court then and there reversed
findings-
judgment
dered the
privilege
ren-
pleaded in
to the
the trial court
same, holding
in the Austin
try
of Austin
cause
venue
judgment in that. suit.
mined
Thereafter,
action.
the 17th
purpose
February, 192G,
no useful
would serve
action of
said cause of
length
unnecessarily
nothing by
of ment
extend
his suit
would
this
opinion
detail
out and discuss in
has
of
same effect and is not
to set
damages’
propositions
under
al-
various
leged
pur-
court.
breach
the oral
lant assails the
judgment are
seed.
chase
His
improper-
appellant's! prop-
have considered all
ly sustained,
Aus-
ositions
none
them
jurisdiction
hear
should
be sustained. It follows that thе
affirmed,
in ment
cause of action
should
been so
determine
being largely
amount involved
ordered.
in
and,
of that
excess
Affirmed.
one to
this suit
*4
Rehearing.
On Motion for
coun-
written
ty
involved in the Austin
rehearing appellant
on an
In his motion
also
oral contract
suit and
complains
causes
was not involved
the two
statement
fully
undisputed
that “the
action are not the
therefore
evidence
supports
judgment
bar to
former suit is not a
findings
appellant in the
asserted
trial court as to
suit in the
this suit.
with-
are
and determined
These
in
presented
suit.”
ground
complaint
of Aus- The
merit. Because the
hаve
the motion is:
was without
reconvention
entertained
is no
“There
statement of
record
facts
for
in
claimed
him this
lant
and there was no evidence introduced at the
validity
way
no
affects the
trial of this
and therefore
make
holding
judgment upon
proper
is without a
clusiveness of its
foundаtion.”
suit as whether
involved
issue
is true that
there is no statement of
breached the
con-
accompanying
record,
facts
but the rule
tract for
sale
the cotton
well settled
a state-
absence
precluded
presumed
ment
was
that there
raising
this issue
this suit.
findings
to sustain the fact
evidencе
estop
doctrine
hot, however,
trial court.
are
pel by judgment operates
preclude
a liti pendent upon
this rule
sustain the state-
gant
raising
an issue
been
which has
original opinion
quoted.
ment in our
above
against
him in
decided
raised
appellee presenting
The answer of
parties by
a suit between
thereto at-
with the exhibits
competent jurisdiction. Old River Rice Irr.
copies
tached
contains certified
Go.v. Stubbs