272 S.W. 1105 | Tex. Comm'n App. | 1925
This suit was filed in Polk county by W. T. Carter & Bro., a partnership, against the Bering Manufacturing Company,
The record shows that the corporation rested its right to have the judgment of the trial court reversed by the Court of Civil Appeals upon 68 assignments of error. One or more of several major questions are germane to all of these assignments. One of these major questions is whether the district court of Polk county had jurisdiction either of the subject-matter or of the original defendant, who is the plaintiff: in error here; another is whether the pleadings of the original plaintiff, whq is the defendant in eror here are legally sufficient to sustain the judgment; another is whether the claim for expenses for rescaling the timber was barred by the statute of limitations, and again, whether the claim for 'the 128,000 feet of timber cut was barred by the statute of limitations, either of 2 years or 4 years. These questions were duly and properly presented, and have been preserved, and are properly before this court for determination.
The partnership and corporation in 1907, as well as at the time the suit was brought and the several amendments filed, each was the owner of a sawmill plaint located in Polk county, and, so far ,as this record discloses, owned the timber used by their several plants. The principal office of the corporation appears to have been located in Houston, Harris’ county, and the actual signing of the contract of May 17, 1907, occurred at Houston, and it may be assumed that the contract was made at Houston. The corporation claimed the right to be sued in Harris county. The partnership filed a contest, and, testimony having been introduced, the trial court in its findings of fact, which appear in the record and which are rather voluminous,' held that the motion to change the venue should be overruled, and it was accordingly done, and due exceptions taken by the corporation. These findings of fact show that the cause of action arose in Polk county, and they further show that the corporation had a representative in Polk county. Paragraph 24 of article 1830 of the Revised Civil Statutes provides that suits against any private corporation may be commenced in any county in which the cause of action or a part thereof arose, or in which such corporation has an agency or representative. The expenses upon which the original petition was based were incurred by the partnership, in pursuance of a conditional agreement that the timber should be rescaled. This timber, was originally growing on lands located in Polk county. The data necessary to determine the amount of the timber cut from the several tracts could only be secured by going on the ground. The parties engaged in rescaling the timber did in fact go on the ground. It was in contemplation of the parties that they should go on the ground. This particular cause of action arose in Polk county. Moreover, the corporation had a representative in Polk county. Its business could not have been conducted without having a representative in Polk county. The rescaling grew out of the transaction represented by the contract of May 17, 1907, which was to be performed in Polk county. Likewise, the item for damages involved in the cutting of
We therefore conclude that the trial court did not err in overruling the plea of privilege filed by the corporation to be sued in Harris county, and that the Court of Civil Appeals was correct in sustaining this action of the trial court.
It is strenuously contended by the very learned counsel representing the corporation that the pleading was insufficient to sustain the judgment, and especially that there was a misjoinder of the causes of action by reason of the alleged claim that the suit for expenses incurred in the rescaling was a suit based on ¿ contract, and that the amended petition which embraced the claim, growing out of the mistake in cutting the 128,000 feet of timber, was a suit based on a tort, and therefore there was a misjoinder of causes of action. The second amended petition, with the exception of the allegations of the names and residence of the parties and the prayer, contained 8 paragraphs, all of which relate specifically to the matters pertaining! to the item of expenses for rescaling. However, in making these allegations, the original plaintiff gave a detailed history of the transaction, culminating in the making of the contract dated May 17, 1907. The remaining paragraph specifically relates to the claim for damages resulting from the mistake in cutting the 128,000 feet of timber on another tract of land not'mentioned in the contract, but believed to have been embraced in it by the corporation at the time the timber was cut. After discovering its mistake, this timber was scaled, and agreement reached that satisfaction should be made by delivering to the partnership an equal quantity of timber belonging to the corporation. In other words, the 128,000 feet of timber was assumed to have been embraced within the terms of the original contract, which contemplated that an equal quantity of timber should be exchanged between the parties when the contract should finally be completed, but the corporation claims that it committed a tort when it cut this 128,000 feet of timber, and that, having committed.a tort, no suit based upon that tort should be joined with a suit on an open account. The cutting of this timber was not a breach of the contract of May 17, 1907. In truth and in fact, this particular timber was not included. in the contract. However, without any negligence on the part of the corporation, it cut the timber under the mistaken idea that it had a right to cut .it by virtue of the contract, and, so far as its rights are concerned, the measure of damages was determined by the terms of the contract.
It may be said that the cause of action for the expenses of rescaling the timber was based on a conditional agreement, and that the cause of action for having mistakenly cut the timber, under the circumstances, was based on detention. That an action of debt and of detinue may be joined has been decided as far back as Chevalier v. Rusk, Dall. Dig. 618. This case has been approved in Galveston Railway v. Dowe, 70 Tex. 11, 7 S. W. 368; I. & G. N. R. Co. v. Donalson, 2 Willson, Civ. Cas. Ct. App. § 238; St. Louis Ry. Co. v. Moss, 9 Tex. Civ. App. 7, 28 S. W. 1038.
In the case of Galveston Ry. Co. v. Dowe, Judge Gaines says:
“Our system of procedure is essentially equitable in its nature, and was designed to prevent more than one suit growing out of the same subject-matter of litigation; and our decisions from the first have steadily fostered this policy;” citing Chevalier v. Rusk, Dall. Dig. 611; Binge v. Smith, Dall. Dig. 616; Clegg v. Varnell, 18 Tex. 294.
But the corporation says that it converted the timber and therefore committed a tort, and an action for conversion is an action founded in tort. In the case of Cardwell v. Masterson, 27 Tex. Civ. App. 591, 66 S. W. 1121, Justice Gill holds that an action against a tenant to foreclose a landlord’s lien is properly joined with an action against others for conversion of property subject to the landlord’s lien, and uses this language:
“The fact that the cause of action against Masterson was for breach of contract, and that against appellees sounded in tort, does not render this holding unsound. Had the conversion been subversive of the rights of both the appellants and Masterson, the suit, as against appellees, would have been none the less one of tort, and yet it is well settled that in such case the appellees could have been properly joined. Cobb v. Barber, 92 Tex. 309, 47 S. W. 963.”
In the case of Cobb v. Barber, 92 Tex. 309; 47 S. W. 963, Chief Justice Gaines says:
“Our system does not favor the bringing of a multiplicity of suits, and therefore permits all causes of action growing out of the same transaction- to be joined."
The corporation, however, contends further that there was a fatal variance between the allegations in the petition and the proof introduced in support of these allegations, in-so far as the item for damages growing out of the 128,000 feet of timber is concerned, because there is no' allegation of any promise to pay therefor, and no liability predicated on this promise, but that the partnership’s suit for the value of this timber is a suit in tort for conversion. The Court of Civil Appeals finds as a fact that' this timber was cut under the mistaken idea that it was included in the original contract, and that after this mistake had been discovered the parties agreed to settle this particular transaction as though it had been included. According to the terms of the original contract', the difference in the amount of timber cut from the land belonging to the respective parties should be liquidated 'in timber. The Court of Civil Appeals further finds as a, fact that the corporation agreed to compensate the partnership, for this 128,-000 feet' of timber by conveying to the' partnership other timber. The further fact was found that the corporation had failed to do this. Evidently this failure created an implied promise to pay the market value of this 128,000 feet of timber. Such being the findings of fact, this court is under the necessity to a'ccept these facts as true, and, based upon these facts, we think the pleadings sufficient as against a claim of variance between the allegations and the proof. The particular! definition which the parties may give to a pleading is not material, where the nature of the transaction is fully set forth in the pleadings as in this case. The theory of the corporation is that this 128,000 feet was converted by it at the time it was cut. The theory "of the partnership is that this timber was converted by the corporation at the time the partnership was notified by the corpora-tion that the latter did not recognize its liability arising out of the mistake made in cutting it, but the Court of Civil Appeals found, as heretofore stated, that the parties had agreed to ignore the mistake, and to settle this item by the terms of the or'ginal contract to the mutual satisfaction of the parties. This .finding makes the transaction one of contract rather than one of tort, and makes the liability of the corporation dependent upon this agreement and its conduct with relation thereto after the agreement had been made. Such being the situation, the action therefor is one arising fromj a contract rather than one arising from any' supposed tort which had been committed.
It is alleged in the petition of the partnership that the corporation, under the agreement, cut from the partnership land 128,000 feet of timber in excess of the quantity of timber owned by it, and conveyed by the agreement for the exchange of timber, so that the defendant failed and refused to deliver that excess, and that thereafter the plaintiff demanded of the corporation that it procure and convey to plaintiffs timber equal to the 128,000 feet, but that the defendant was unwilling and unable to do so, by reason of which the plaintiffs were entitled' to recover the market value, which market value the defendant had after demand refused to pay. Disposing of the questions of pleading raised by the corporation, it may be said that the petition was sufficient to state a cause of action under the exceptions made thereto which, excluding the question of mjsjoinder of causes of action, amounted to no more than a general demurrer, and that the judgment has cured whatever defects, if any, which might have been pointed out by special exception.
The corporation further contends that the partnership’s claim for expenses, incurred by the latter in rescaling of' the timber, was -barred by the statute of limitation of 2 and 4 years. This contention is based
The corporation further contends that the claim for the market value of the 128,000 feet of timber as set forth in the plaintiff’s second amended petition, filed June 22, 1921, was barred by the statute of limitations of 2 years and of 4 years, since it appears that up to the time of the filing of this amendment no suit had been filed based upon this claim, and this particular timber had been cut more than 10 years previous thereto. The Court of Civil Appeals finds that on the 24th day of March, 1914, the corporation duly acknowledged that it was due and owing to the partnership this 128,000 feet of pine timber, and agreed to convey to the partnership a like amount. It further found that thereafter there were negotiations between the parties looking to a settlement and adjustment of all their differences, including the conveyance of the 128,000 feet óf timber, but that this conveyance of this timber was delayed from time to time until about the 3d day of November, 1920, on which date for the first time the corporation notified the partnership that it did not intend to supply the timber or to pay therefor.
The Court of Civil Appeals further finds that during all of the time these negotiations were pending the partnership relied upon the written acknowledgment of the corporation that it would make conveyance of the timber or pay therefor a reasonable value when all the matters in controversy between them were adjusted, and within two years after receiving such notice that the corporation had repudiated its agreement to convey the timber or to pay therefor the partnership filed the second amended original petition. The legal question involved in this case under these facts is, when did the alleged cause of action based upon the item of 128,000 feet of timber in favor of the partnership arise? The corporation contends that it arose when the timber was cut more than 10 years before this amended petition was filed. The partnership contends that it arose when the corporation notified it that it did not intend to convey this amount of timber or to pay for it. If the theory of the corporation is correct, then it was the legal duty of "the partnership to have demanded of the corporation
It is a fair Inference from the facts found by the Court of Civil Appeals that the corporation cut all of the timber it was entitled to cut under the contract within four years from the date of the contract, since it appears that when the parties attempted to rescale this timber such a length of time had elapsed that much of the necessary data had disappeared from the land. However, it fur-thur appears that there was a partial ascertainment of the facts growing out of the transaction, evidenced by the contract of May 17, 1907, on March 24, 1914, on which date notice was duly taken of the fact that this 128,000 feet of pine timber, cut by mistake from land belonging to the partnership by the corporation under this contract, should be included in the amounts of the timber cut by the corporation for which it was bound to account to tjie partnership in the general settlement under the terms of the original contract, which was, in effect, that the corporation should convey to the partnership the amount of timber necessary to equalize the amount of timber which the partnership had conveyed to the corporation. According to the theory of the partnership, under the facts found by the Court of Civil Appeals, it did not have the legal right to institute a suit against the corporation to establish its right finally to have adjusted its claim growing oht of the original cutting by mistake of this 128,-000 feet of timber, on account of the fact that there-had been no final settlement between the parties, and the further fact that the corporation recognized and acknowledged its obligation to the partnership growing out of the cutting of this 128,000 feet of timber by mistake, and had agreed to include it under the terms of the contract in the final settlement of all matters growing out of the transactions arising from the contract. There had been no final settlement of these matters.
This court is compelled to accept the facts found by the Court of Civil Appeals. Since the facts found by the Court of Civil Appeals áre that the parties had recognized this 128,-000 feet of timber as being within the terms of the contract, and the corporation had agreed to transfer to the partnership that amount of timber, and expressly stated that this would be done to the satisfaction of both parties, clearly this agreement was an execu-tory one. Its termination depended upon a contingency which, in its very nature, was a continuing one until the partnership had been notified in the letter of June 9, 1920, by the corporation’s attorney to the partnership’s attorney, informing the partnership, in effect, that it would not comply with this agreement. Up to the time that this letter was written and delivered, the partnership, according to the facts found by the Court of Civil Appeals, had , no legal right to bring suit against the corporation to enforce the terms 'of that agreement. The obligation to transfer 128,000 feet of timber to the satisfaction of both parties, under the facts found by the Court of Civil Appeals, was not an obligation which the partnership could have enforced at any time it saw fit, so long as the corporation was engaged in a reasonable effort to comply therewith. Limitation against the right of the partnership to a compliance with this part of the agreement did, not begin to run against it until the obligation was repudiated on June 9, 1920. Up to that time, while the obligation, existed on the part of the corporation, the right to compel its performance by the partnership did not exist, for the reason that the record is silent of any intimation that the corporation had repudiated this part of the agreement until the letter was written and delivered. This agreement contains the following recitation:
“This deed is not intended to include 128,000 feet of pine timber yet to be transferred by the party of. the second part to the parties of the first part, which on computation by the party of the first part after the close of scaling and balancing the account was found to be yet due from the party of the second part to the party of the first part, which will hereafter be done to the satisfaction of both parties.”
. The, language, “which will hereafter be done to the satisfaction of both parties,” renders this part of the agreement, evidenced by the instrument dated March 24, 1914, ex-ecutory in its nature, and the beginning of the period of limitation depended upon the knowledge brought to the partnership that the association had repudiated this part of the agreement.
In the case of Abercrombie v. Shapira, 94 S. W. 392, the Court of Civil Appeals holds that where the owners of certain lands contracted to make title to the same to a vendee, when the land was surveyed and divided and the land was never surveyed nor divided, limitations began to run against the vendee’s right to a conveyance from the time that it appeared that the vendors did not intend to divide or survey the land. So in this case limitation began to run against the partnership’s right to have transferred by the corporation 128,000 feet of pine timber from the time it appeared that the corporation did not intend to transfer the timber. The general rule is that a right of action does not accrue upon a contract until it is executed or a con
“Where some condition precedent to the right of action exists whether it be a demand and refusal or some other act or contingency, the cause of action does not accrue, nor does the statute begin to run, until that condition is performed. Thus, if a debt is not absolutely or presently due, but either the obligation to pay or the time of payment is contingent on the performance of some act, the happening of some event or the lapse of a specified period of time, then the happening of the event is a condition precedent to the present obligation to pay, and the debtor is not in default nor the creditor entitled to call for performance until the condition is fulfilled and the statute cannot begin to run until that time.”
This rule is quoted with approval in the case of Ewing v. Schultz, 220 S. W. 625, in which the Court of Civil Appeals of the First District holds that a claim is not barred by limitations until the contingency has happened which, under the terms of the transaction, would'set the statute in motion. No time was specified in the instrument dated March 24, 1914, for the delivery of the timber, so that the running of the statute of limitations must necessarily begin upon a demand and refusal to perform this part of the contract. According to the findings of fact by the Court of Civil Appeals in this case, the partnership never made any demand and the corporation never refused until June 9, 1920. Taylor v. Rowland, 26 Tex. 295. Performance was postponed apparently and presumably from the standpoint of the partnership by mutual agreement until the partnership was informed on June 9, 1920, that the corporation did not intend to transfer this 128,000 feet of timber or do anything else more than it had done. We do not think the claim by the partnership for the 128,000 feet of timber was barred by the statute of limitations of two years at the time the second amended petition was filed, and that the trial court did not err in refusing to sustain this contention, and that the Court of Civil Appeals correctly ruled in approving the action of the trial cqurt; and therefore we overrule all of the plaintiff in error’s assignments of er ror germane to this question. Abercrombie v. Shapira (Tex. Civ. App.) 94 S. W. 392; Ewing v. Schultz (Tex. Civ. App.) 220 S. W. 625; Cruse v. Eslinger (Mo. App.) 235 S. W. 496; Southern Pine Lumber Co. v. Cameron & Co., 45 Tex. Civ. App. 350, 101 S. W. 488; National Cotton Oil Co. v. Taylor (Tex. Civ. App.) 45 S. W. 478; First National Bank of Jonesboro v. Glass, 128 Ark. 578, 195 S. W. 15; L. H. & St. L. Ry. Co. v. Baskett (Ky.) 104 S. W. 695; Ruling Case Law, par. 121, p. 755.
The corporation further contends that so much of the judgment as covers the claim for expenses incurred in the rescaling of the timber, amounting to more than $1,600 originally, is without support in the testimony, and that the Court of Civil Appeals erred in overruling the 17th assignment of error on this subject. This is a question of fact of which this court has no jurisdiction, since the record discloses the Court of Civil Appeals found the existence of ample facts to support the contention of the partnership with reference to these items of expense. The original contract provided for an exchange of timber. The record shows that the corporation was greatly benefited by securing the privilege of cutting timber from the partnership’s lands on account of the fact that these lands were contiguous to its sawmill, and it owned no timber so conveniently situated.
It is true that the corporation had indicated its dissatisfaction with the result of the scaling of the timber, and the partnershipwhile being entirely satisfied with this result, finally made a conditional agreement that another scale should be made; but the agreement expressly provided that the partnership should not be liable for the expenses unless the result of the second scale after its completion should show an error of at least 1,000,000 feet of timber, in which event it agreed to pay for the labor of the party representing it in the rescaling and one-half of the resurveying. As has been noted, muofe testimony was introduced on this subject, and the Court of Civil Appeals found as a fact that this contingency did not occur. Based upon this fact, the only legal question involved in this matter before this court is whether the items of expense and the prices thereof incurred by the partnership were reasonable ones. The Court of Civil Appeals having found these were proven, it follows that the corporation is liable therefor under all the circumstances of this case. It is also true that the Court of Civil Appeals found that an agreement was made to discontinue the rescaling of the timber, but that the partnership’s agent did not understand the facts so as to bind his principal, and the corporation contends that, under a proper construction of the agreement, the corporation was not liable for these items of expense. It is a familiar principle of law that a party cannot claim the benefits of a part of an agreement and refuse to be bound by the remainder. We, however, think that this finding is not necessary to the decision of this case for the reasons heretofore stated. Even if this finding were necessary, we think, under the facts upon which the finding is based, the Court of Civil Appeals' has correctly ruled the point, and that ,the authorities cited in its opinion support the ruling. See authorities cited by the Court of Civil Appeals in its opinion rendered in this case in 255 S. W. 252.
This huge business transaction, involving approximately 100,000,000 feet of pine timber, its separation from the soil upon which it originally stood, and the adjustment of the respective rights of the parties by due ascertainment and proper appreciation of every minute detail, as reflected by this record up to the date of the letter written on June 9, 1920, when the corporation for the first time indicated its decision to disregard its agreement expressed in the instrument dated March 24, 1914, is an example of fraternal co-operation of those engaged in these industrial enterprises worthy of the emulation of every one.
The record in this case is replete with evidence that those who were intrusted with the authority to act for the respective parties in this transaction, the handling of which covered a period of more than ten years, and involved important responsibilities and attention to innumerable details, were persons possessed of the highest sense of right and governed by principles of funda
Therefore we recommend that the judgment of the Court of Civil Appeals reforming the judgment of the district court, and as reformed, rendered in favor of the partnership, be affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.