112 S.W. 116 | Tex. App. | 1908
Appellee was a tenant of appellant, and instituted suit in the Justice Court upon an account aggregating ninetysix dollars. Among other items specified was one of forty dollars for "three-fourths of two bales of cotton, less cost of picking." The landlord, Huggins, replied with a counterclaim aggregating the sum of *505 $105.70. In the Justice Court appellee Reynolds failed to recover, and appealed his cause to the County Court of Clay County. The trial there resulted in a general verdict for appellee in the sum of $45.93, from which this appeal has been prosecuted.
On a former day of the term the appeal was dismissed, because the transcript as then appearing failed to show a disposition in the Justice Court of appellant's counterclaim, but since that time the record has been corrected in this respect, and we now, therefore, set aside the former judgment of dismissal and proceed to determine the questions presented by the assignments.
Appellant among other things requested the following special charge, which the court refused to give, and to which action of the court error is assigned, viz.: "In this case you are further instructed that if plaintiff's tenancy terminated on the 1st day of January, 1907, and if thereafter plaintiff delivered up possession of the rented premises, and if as to any part of the cotton plaintiff had grown on said premises, and that then remained unpicked, plaintiff abandoned said cotton and declared his intention not to pick the same, and that defendant might turn in on it, and if thereupon defendant hired the same to be picked and sold the same, then plaintiff is not entitled to recover any part of the proceeds thereof."
Appellee's lease terminated January 1, 1907, and appellant Huggins testified in substance that on or about the 15th day of January, 1907, he went to see appellee, who had then removed from the witness's place, in order to get the unobstructed use of the rented premises for pasturage, and that appellee then directed him "to go ahead and turn in; that he, appellee, was not going to pick any more of the cotton;" that it was after this that appellant caused to be picked and sold the cotton, the proceeds of which was sued for in this case.
It seems to be well settled in the authorities that a party may abandon and relinquish his right to property. If the owner sees proper to abandon his property and evidences his intention by an act legally sufficient to vest or divest ownership, why may he not do so? In M'Goon v. Ankeny,
We find no other error in the proceedings as assigned, but are unable to say from the verdict of the jury that they did not find for appellee for the item mentioned, and the judgment must accordingly be reversed, and the cause remanded for the error of the court in refusing said special charge.
Reversed and remanded.