| Tex. | Jul 1, 1876
-It appears from the pleadings and evidence that Dennis Neil and John Shackelford were joint owners of lots Nos. 2, 3, and 4 in block No. 626 in the city of Galveston. Shackelford used a portion of the lots as a bonded yard, for the reception and storage of such unclaimed and bonded goods as were committed to him for safe-keeping by the collector of customs at the port of Galveston. In the years 1855 and 1856 a large quantity of railroad iron for the Galveston, Houston, and Henderson railroad was stored in the yard by the collector of customs as unclaimed property.
It is charged in the petition that Shackelford received from the railroad company a large sum of money for the storage of the iron and other materials of the company upon the lots, one half of which sum is claimed by Neil m tMs suit.
The first trial resulted in a verdict for the plaintiff, which was set aside by the court, and a new trial granted. On the second trial the jury returned a verdict for the defendant, from which the plaintiff has appealed, and, for error, assigns that the court erred in overruling his demurrer to the defendant’s amended answer setting up the release of Neil to any claim, for the storage of the iron belonging to the railroad company, 1st,, because it is not alleged that the release was exe-. cuted upon any good or valuable consideration; 2d, because the release purports on its face to be voluntary and without any good or valuable consideration in law.
It is recited in the release that Neil had never expended any money, or had been called upon for any part of the expenses incurred by Shackelford in making improvements, and stipulating that he is not to be called upon for any part of the costs or expenses for prosecuting the claim against the railroad company.
It was shown that Shackelford paid for the improvements, consisting of a fence, inclosing about two thirds of the one half of the lots in which the iron was stored. It was further shown that he paid the charges for drayage, wharfage, and labor for storing tire iron in the yard bonded and opened by him for that purpose. He also paid for entering the different cargoes of iron at the custom-house, and paid the ware-housemen or employees of the collector. These charges, with other items shown by the account attached to the defendant’s answer as an exhibit, and which, as shown by the evidence, were incurred and paid by the defendant alone,
A part of these charges were incurred and paid before, and a part after the execution of the release.
The second assignment of error relates to that part of the charge of the jury which is as follows: “If you find that said instrument, in its present shape and language, was made by said plaintiff, you are charged that said instrument is a complete defense to the plaintiff’s suit, and you will find for defendant.”
Having shown that the instrument is founded on a sufficient consideration, this assignment will not he examined further in this connection.
The third, fourth, fifth, and .sixth assignments may he considered together.
The third assignment is an objection to that portion of the charge instructing the jury in substance that Shackelford, being owner of one undivided half of the lots, had a right to use and occupy any portion of the same, subject to the plaintiff’s equal right of use and occupation, and that the defendant would not render himself liable to the plaintiff for use and occupation until the plaintiff should demand to enter upon the lots, and equally use the same.
Foiuth. That the plaintiff, to recover in this action, must prove an express agreement to account to Mm for one half of the value of the use and occupation of the lots.
Fifth. That Shackelford was not hound to account to Beil for the profits resulting from improvements put upon the lots, or for labor and care invested in conducting any business thereon, unless there was an agreement to that effect.
Sixth. If the jury believe from the evidence either that the written disclaimer was executed by Beil, or that there was no agreement between the parties that Beil should share the profits from the storing of the iron, or that there was no net gain or profits realized by Shackelford, they should find for Mm.
The case, as presented by counsel in the brief for appellant, involves a question of agency, as where one party manages the property for the benefit of himself and others jointly interested with Mm in the estate.
The plaintiff in Ms petition alleges that the defendant, in his own name and with the consent of the plaintiff, contracted with the railroad company for the storage of their iron upon the lots during the years 1855, 1856, 1857, and 1858, with the promise on the part of the defendant to plaintiff that the money arising from the use of the lots should be equally divided between plaintiff and defendant when realized and paid to defendant.
The evidence fails to establish the allegations of the petition. There was no evidence of any promise by Shackelford to Neil that the money arising from the use and occupation of the lots should be divided between the parties. The only evidence that Shackelford acted as managing owner of the lots was that Shackelford paid the taxes on the lots and charged one half of the amount to Neil. Nor does it appear that any relation existed between the parties other than that of tenants in common of the property.
“"Where one tenant in common,” says Story, “has been in the exclusive perception of the rents and profits, on á bill for a partition and account, the latter will also be decreed.” (1 Story’s Eq. Ju., sec. 655.)
ít appears that the improvements were erected on and included less ground than Shackelford’s share on partition.
“ If improvements have been made by one tenant in common, a suitable compensation will (as we have seen) be made Mm upon the partition, or the property on wMchthe improvements have been made, assigned to Mm.” (1 Story’s Eq. Ju.,
No agency and no promise of Shackelford was shown to make him. hable to Neil for a share in the storage business. Shackelford’s possession was not exclusive, nor did it appear that the portion of ground on which the improvements were made, might not have been assigned to him on partition without prejudice to Neil.
The court properly instructed the jury upon all the issues in the case, and in doing so the instructions embraced the issue upon the plea of non est factum, and the effect that should be given by the jury to the written release or disclaimer if they believed it was executed by Neil. The jury may have found their verdict on other issues and not on the plea of non est factum; still it becomes necessary to examine the plea, as the finding upon it is assigned for error.
The court instructed the jury “that the burden of proving the execution of the instrument was upon the defendant, and that the defendant must prove to them satisfaction that the instrument in exactly its present shape and language was executed by Neil, and left in the possession of Shackelford.”
John B. Jones, attorney for Shackelford, testified that he had seen the written release in 1861, soon after the commencement of this suit, and stated as the reason why he did not plead the release at the first term of the court, that he merely wished to keep off a default judgment, and the war coming on no more suits were tried, and he had no use for the paper until the courts were opened again, and handed it back to Shackelford for safe keeping.
After the release had gone to the jury it was their province to decide the issue of fact arising upon the plea of non est factum. There is no such preponderance of evidence against their finding as would warrant this court in setting the verdict aside.
It was necessary for the defendant to prove the release or disclaimer in the same manner that the plea of non est factum
There was no error in excluding the plaintiff from testifying as a witness in the case. (Paschal’s Dig., art. 6827.)
The declarations of Shackelford in 1858, in substance that Neil was interested with him in the claim for storage, would. not affect the release in 1859.
The instructions asked by appellant have been noticed and disposed of in discussing the other assignments of error.
"We are of opinion that there is'no error in the instructions of the court or in the verdict of the jury requiring a reversal of the judgment, and the same is affirmed.
Affirmed.