Old River Rice Irr. Co. v. Stubbs

simрlest performing any part fendant had purpose art. terms of his which de- of.the the contract * * * however, understood, renounced, be It is not to and hence every photograph recover, the taken entitled to offered as to for defendant’s failure expenditures X-ray process be admissible. furnish cathode the made or planting crop up competency, first determined Its trial perience, the and, should not be conclusive to be skill, upon science, judge, depends ex- timе of defendant’s furnish refusal to water. taking party intelligence cases, [Ed. Note.—For other see Waters it, l'egard picture testifying with to Courses, Dig. Water § 261.*] Dec. important qualifications, lacking these Appeal (§ 1002*) 4. and Error admitted; —Verdict— it is not and even then Conflicting Evidence. fact, be is to the triers jury’s finding particular A on a issue on weighed competent evidence.” like other conflicting which the evidence is set will be - n anything the ex- to add appeal. are unable to aside on say cerpt quotеd, cases, Appeal than to other Note.—For see TEd. Error, 10Q2.*] Dig. Dig. 3935-3937; § Cent. Dec. §§ preliminary proof accura- instant case the knowledge cy the witness on the (§ 249*)— 5. Waters Water Courses bring as to both was shown in such manner Irrigation —Contract—Constructions. clearly tracings photograph two conveyed way right Plaintiff a for irri- gation within the rule stated. ditches over a tract of land described containing survey, as de- 427.7 acres on the T. Believing in the admis- there agreeing fendant testimony complained of, it be- sion рro irrigating rata share for for his rice duty to affirm case. comes our crop during farming seasons; successive paying the reasonable for water rent Held, therefor. defendant was bound irrigate furnish water to the rice acres, though whole 427.7 80 acres thereof IRR. CO. v. STUBBS. OLD RIVER RICE survey. were located in another 6534.) (No. cases, TEd. Note.—For other see Waters and (Court Texas. Galveston. Courses, Dig. Water Dec. 249.*] § May 19, Re Motion for On 1914. 1914.) Rehearing. hearing, On Motion for June Judgment (§ 265*) 6. Evidence 949*) Judicata —Plea —Res —Admissions—Conclu —Sufficiency. siveness. Where, fur- in a suit to recover In a suit for of a contract breach plaintiff’s crops by alleged irrigation con- defendant’s failure to fur- nish under an water for irrigate nish for water to tract one-fifth accordance sufficient contract, plaintiff crop, plea reciting rice admitted that during value of suit had been he did the sea- former between the same raise $637.75, son in had such admission instituted on the identical which showing sea- concluded that the been construed therein to cоver continuous value amount, sons, judgment was less than such that a had recovered but was not con- been prevent appeal, clusive on that issue and did not de- affirmed pending fendant from was raised that the identical issues raised in the action greater interpretation, scope, thq value. and va- lidity of the contract were and decided cases, Evidence, [Ed. Note.—For other see suit, on their merits in the former was suf- Dig. Dig. 1029-1050; Cent. §§ 265.*] Dec. § judicata. ficient as a Court, from District Chambers cases, Judgment, [Ed. Notе.—For other see County; Hightower, Judge. Dig. 1794-1S03; Dig. L. B. 949.*] Cent. Dec. §§ § Action F. H. Stubbs Judgment the Old (§ 601*) Judicata —Mat —Res Irrigation Company. Judgment ters Concluded. River Rice Where a in a former suit appeals. and defendant Af- irrigation breach that an contract determined firmed. a continuous contract was one and valid, judgment, though judicata such not res Lane, Anahuac, Marshall, A. W. subsequent suit between the same appellant. Houston, Storey, & Wolters for a further breach of the contract because Pickett, Jr., C. F. identical, Stevens аnd B. E. both causes of action were not operative nevertheless Liberty, appellee. validity and construction of the contract and any other matter or issue determined in the PLEASANTS, C. J. This suit was prior suit and to be the sub- brought by appellee against appellant sequent one. recover for the failure cases, Judgment, [Ed. Note.—For other see Dig. 1116; Dig. Cent. irrigation Dec. § § 601.*] to furnish water for (§ 261*)— cultivated Waters and Water Courses Irrigation — — — Contracts Dam Breach during season of 425 acres of ages. adjаcent irrigation land canal owned continuing Where had a appellant. operated by Plaintiff’s claim binding furnish, ‍‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌​‍through defendant to him water irrigate continuous seasons to the water was contract ex- based defendant, one-fifth of the the fact that ecuted defendant on or about Novem- prior 1910, declared that it would furnish ter thereunder plaintiff planted to the time 10, 1903, by ber the terms of which defend- positively repudiated the contract and conveyance ant, in consideration of no wa- during sеason, way obli- for its canal gate plaintiff money expending to refrain from obligated plaintiff’s land, across and bound planting or such labor on the faith of equal pro itself to furnish “his rata of obtaining water from defendant under the con- tract, water for his rice topic Dig. Dig. Key-No. Rep’r *For other cases see same and section NUMBER in Dec. Am. Series & Indexes & Tex.) IRR. CO. RICE v. STUBBS RIVER OLD farming season; rice same was mutual water rental therefor.” though wit, defendant tract should the contract is the reasonablewater contract, fifth sive the the same and defendant for furnished thereunder.” said and between the 1908 defendant under 7S9 on the docket of the district for of pay, crop grown planted issues involved res that the above-mentioned contract all said district court murrer, from and Chambers in, and, grown, petition lands.” That said bound and plaintiff subsequent matter identical late to the contract one-fifth of the rice date; pense company, answered thereafter 137 S. W. 154. It is further answer, alleging Court of Civil new after defendant herеin filed suit tified him “That n Plaintiff’s That The defendant seasons, plural, wit, adjudicata year.” contract, “that said but with water said cause defendant, $8 said contract for land in hereof, during said and also watered the before judgment his land in and certain “that with water for herein, should be construed tendered preparation therefor, pro per acre, as was a positively affirmed county, during agreed 1909, refused an obligated furnish him with water for all if be, amended contract rata of water it was understood obligation the seasons and the any those entered plaintiff prepared general denial, watered Appeals, and it herein, company being said defendant but under interpreted Tex., in said cause is “for interposed date of said defendant one-fifth of the on March said season. farming by Supreme mistake, after such cause many that it would not rental, judgment rice, “adjudged asserted crop grown $8 paying special exceptions, aforesaid, sued the cause thereunder heard is issues in was intendеd to farming parties hereto, petition alleged understood wherein the into in so far as long said cause per Also it was one-fifth of the any and writ in was ‍‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌​‍furnished under would furnish went to or and defendant seasons; years, as furnish water to old seasons and acre being him and all to mean a one- 1906, 1907, a action provided alleged a notice, defendant appellee and a company rice charge contract, season,” this cause. plaintiff singular, 1911, by Court. general on the said That there- eаch succes- and water reasonable pleaded reasonable cause the causes of action are different refused to all applied numbered said con- agreed by No. and said appealed court of of error they and the alleged: Stubbs, in the subject- any decreed seasons furnish are in said merits, special are all in said he did there- plant- be, crops here- v. 789,” rent, him and and the See no- because ex- sive de- tract. re- ed in a another suit res county, Tex., leging so with full not fore answer, plaintiff pleaded alleged fifth rent, and that the was there denied quently ages. that the ferent of preme judgment, mandate, Old consequently rice No. contract. ruled the of the tion to the in raised scope, former suit appellant’s former plea the issues raised in shows that the ed; is the identical contract interpretation, scope, still or issue determined res In answer to defendant’s first Defendant The first But a ^[1] appellee’s supplemental F. appended adjudicata water adjudicata provisions interpretation 789, River that said its first sufficient as a chargeable operate of the rice formerly adjudicated relied H. trial state that all Court former suit to raise such issues. Court Appellant appellee’s right suit. the defendant was identical. decided present Old River Rice Appeals, to a Stubbs, judgment exception. this suit affirmed; judgment Rice validity samfe; this Certified plea, court to sustain plea the oral knowledge brief causes of mentioned 1910, upon by plаintiff, supplemental answer, denying as as an specially was and that Supreme judgment of between the These of former suit the issues facts, being suit, contract sued Irrigation exhibits. the former suit district suit with Civil with the exhibits the statute and that it was not there- void while former the sense was an action to recover and the order of the Su- complains and construction of said estopped res as to that writ of error was agreement copies thereby in the former suit is not which is not involved ground allegations in this suit to as said cаse action excepted any increase Court of and unenforceable. to recover that defendant in said their merits in said adjudicata court of Chambers Irrigation Company a a writ of res set validity petition. contract were Company reasonable appellant’s estopped that it that it when identical issues up of on in adjudicata, interpretation, case No. adjudicata district plea at Texas, supplemental the two suit in came within affecting presented bеtween the frauds, entirely therein had the refusal error, court over any accept render the which the of the con Galveston, such issue defendant pleadings, the Court contained is conclu judgment appeared this case appealed raise the of v. F. H. this suit thereto, plea bar to matter would excep- conse- water cause court dam- deny suits rais to a one- bas 789, and dif al- be- preparing would not der.” January 1910 four-fifths follows: undisputed before pense market made ready the reasonable year 1910, and of above entire ny rice, been of rice at the time the same would have been purchaser’s for, presented by the third plains court’s objected former suit “were ferent from the the plea ant’s case of termine from the 24 L. Ed. 195. field, between 27 Tex. Civ. because the Land & Cattle to this evidence was that as an to a upon of the evidence offered Foster v. same clearly S. W. Civ. between “The “In The What we have said in The second The damage, positive refused to and in case unequivocally crop up also presеnt App. 225, if ready properly 24 S. W. exceptions the same cause of action and its effect The the land second suit between the same what crop up ascertaining proposition he had court marketing 1034; undisputed ruling of the any, charge: charge complained stated allows Cromwell n raising, harvesting, you 1, the same should day market, to sustains the his land or Wells, supply plaintiff any if to be notice that the defendant evidence shows that ‍‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌​‍1910, entire of error adjudicata. is entitled to to the third of subject-matter operation suit.” any, App. 121, will the entire gone you may Carson v. 44 S. W. overruled, exceptions had 323; City market value in market, incurred following paragraph Co., subject you June, to the not not raised in a 4 the trial court in at the nearest market there- would be the another action between the renounced the determine under this wliat assignment. already expended upon planted separate, Mr. v. planting Tex. parties. a different claim is his rice time the defendant 6 Tex. Civ. err have beеn sustained. portion thereof, disposes any expense Sac 1910.” oí a 66 S. W. 106. plea find the 406; he would have less the additional ex- crop find, Justice and issues damage, 101; in of Houston v. any expenses McCormick, appellee, by The how recover, to the discussing Co., allegations of is erroneous it was immaterial overruling June, whereas, of res would have made from then distinct, Boykin objections that would have This distinction ish shows that on subsequent Cook Carroll of the many objection market value of error сom water thereun- 94 amount Fields in the ination that the said if The evidence preparing issues App. 326, plea having expenditures the evidence contract, on or about you whatever rice, adjudicata. involved any, U. S. complains v. admitting barrels v. Rosen was still a over and company question the first as bar notice was measure case the contract was 18 he will de- manufacture the defend Walsh, ’receiv- parties 26th, compa- of the raised, to the which of his made is as abandon Tex. vеry 351, suit dif- be, 25 increased. ed, basis mated contract which the pending furnished water therefor his on his land for several caused tract. order obtained would have as too yield rule is extended so notice to the manded formance far as He had contract the ecutory v. were manufactured the the facts of this case. It was held that the cites, among others, the case of Ollesheimer on party, appellant the renunciation of the contract injunction, all of fighting ing, them give ters betweеn Mr. further effort to thought they furnish of would examination planted notified “I was We do not think this rule is In Foley, his got seller had purchaser estimating and followed Ayers me water after the in which that. That bluff did not express part yield he cannot speculative and uncertain to form a uncertainty not furnish him If he had not out what appellee planted for as to both his by appellant his was for the the was not a stand of 42 Tex. Civ. his business as a rice farmer estimating damages, and, when the had no Appellee invokes the rule оn wrong protect appellant growing crop was once chance to but I did me.” that I knew that so as water thereunder furnished a Plaintiff was to a contract liability order. The repeated by he went ahead my lawyer he testified: of the money necessary his were refusal purchaser’s repudiation and he was terms of the appellant positively repudiated liable for the contract to get and cultivated a after he knew that awhile they it to increase the part under his cоntract. goods and filed that proceed manufacture, performing parties. bluffing, testified water up. proposition declared that damage. purchase get rice, as to include the seller, npt call a writ of App. 252, concerned, and thus increase the In fully ago I was comply very years the water. made a and the passage water. On redirect purchaser, for seller get any by appellant letter of damage. proceed with contract, was never after he reсeived upon Before the when my crop would not uncertain basis given from had renounced. work, executed they for probable yield trying his and had been case cited the above court 95 S. W. 688. with its con- proceeded thought applicable required, and was ex- damage, performance when one of goods required of those let- company; plowed and in ex- cross-exam- the season water I mandatory would not plant for it would the other regarded notice of appеllant I damages probable contrary answered January counter- In this in proceed- to make to hold greatly quoted, of rice plant- which I goods price. furn- there- esti- This with per- kept his so- to- to I Tex.) RICE IRR. CO. OLD v. STUBBS RIVER 31 order to wrong, farmers, mandamus. of furnish damage. ter in which its renunciation 86 S. W. not value ed him that it would upon self. pended crops was not declaration of its intention appellant’s produced verdict the value raised from the value of have entitled of its the fifth statement copy plaintiff’s plаnting not furnish statement lant’s for which the cost of refusal plaintiff appellant’s offset the value of said would shows curred sum Crop would jury after he was notified that statement, The quasi public The fourth its contract owed excessive because by plaintiff, entirely be that injured thereby. raised have been raised. For over he raised, abstractedly of other the same terms terms of damage legal duty record shows that expenses if it had been to so increase sustained. $2,000, to recover at least of the estimating required raising assignment complains and this could the several hundred sacks of appellant protect appellant of under the be the value ‍‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌​‍failure to furnish repudiation by plaintiff having him raise, „it Borden v. destroyed, deducted the verdict, expenses addition crop compensated farmers. which the court to instruct the assignment complains was in not recover above jury corporation and have made the value of the and therefore was not of the of the contract jury after Am. St. crop manifest that he but there is- duty aught it furnished what was erroneous crop. the could not release accept expressly if this it finds this which shows that what assignment to the amount gave his rice marketing Rice properly no incurred and, could be enforced that damage It notified cultivating undisputed plaintiff’s crop was Rep. received notice of uncertainty way this, appellant The value way and goes would sufficient any expenses Co., and if the the value of the appellant notwithstanding appellant was true it watered raised water, that he would which assails the verdict on this issue as un- appears appellant nothing been deducted of the verdict deducts act otherwise he ment, and increased sustained without watered the and the also independent assignment disposes value.of plaintiff of him water raised and the contains a release have been loss. rice. The ample by him Tex. upon any jury would its own he the The let- duty plaintiff plaintiff question inform- expend- amount charge entire appel- credit of water for itself from jury after 'that crop crop veyed by plaintiff say- 494, can- The that and to the the that his of the the loss of the ex- in- 1910. it- to ed be is What is verdict have been verdict on the have been $2.60 388 acres of the number are the damage dence as to ed ruled. tiff’s farm did not allow sufficient deduction and laterals was drains, and laterals sue supported by would have been Rector per barrel, evidence to ruled. the land cultivated under its contrаct with Rector able water rent on puted acres the Rector owned vated in- regardless which it was or the 427.7 acres (all) ^[4] There is no merit in the Appellant received notice of partly and cultivated in acreage overruled. at of on this issue. The farming seasons, the The the evidence which assails the on these evidence shows right way conveyed contract contract. verdict of the this amount the survey, Tilton survey. the market value of the at acreage rice the Tilton sixth do not think 427.7 survey eight of whether the land, of acres has taken assignments, and the seventh ground survey. given would is above in actual which was the sum assignment complains unquestionably per therefor,” raised, acres on the Tilton Rector evidence, and its market value would sacks of rice also its taken is a yield being sustain the up conflicting; appellant “his shows that identity by plaintiff on said barrel. the verdict of the have been worth $2.60 on appellant’s repudiation that survey, by number conflicting upon appellant pаrt entirely verdict rice after liable $4,495.22. cultivation on survey. equal pro over discussing up by appellant’s assignment the paying and both of the must also be over- is limited to land- of the 427.7 acres there the 80 fixes and location land. ditches, drains, a tract of 427.7 but the undis jury of state in their eighth assign- finding subject-matter- on the but there acquired per acres of the- the 80 is-.described' acres crop during- assignment, was on the- watered There is is the reason only to furnish- rata share- field land over- deducting the third In arriv- sufficient way acres The evi acres prior present- acre contract is over ditches, finding survey, ground of the of the the plant bound plain Tilton them culti jury that, title- con is- no on. by- of’ is to- - of it is grounds lieve error, which ficiency signment plaintiif damages should be overruled. We still ously plained crop-raised by appellee. loss, der the from the statement set plains mittitur sion be reversed unless prevent appellant gave appellant cussed, respect find that showing and it is therefore affirmed. ering ue. We than the amount stated tiff from tion of would authorize a pellant presents plaintiif For that this admission of did he would have made crop 75.” value of the the amount “The statement under “The aAt This correction in our We are Affirmed. In its motion for The admission of copy aside the order raise, affirmatively appear aught issue. Such admission concluded assignment Upon concluded our complaint statement, estimating' stated in our not on the former our of the. what was the value of the of our of under deducted for that reason fhink, On Motion for but there is clearly unsound, of error eliminates one of error, upon raise on his expended by the sum of a re-examination of the brief we by him, opinion appears jury we following of said land. credit the issue of the value of the statement verdict, holding day ‍‌‌‌‌​‌‌‌‌‌​‌​‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌‌‌‌​‍admitted that the value of appears does however, and the fact have raised and for which the no error is that of error: from it was not deficient in the the seller that were authorized to allow Tilton reversаl is that this requiring plaintiif issue. that: rehearing appellant the reasonable inference the value of opinion, from the statement un nothing quoted show before set out under the $2,000 land obligation which we discuss the the value of the which shows that showing greater our statement that said $2,000. plaintiff,” finding by him, Rehearing. the statement under the value was less daily from the statement survey that while it does have Giving the value of the term own should in excess is withdrawn. in the statement 1737, 1743, 1762; of the value of plant sustained that a 1910 was think, remittitur. statement, as tо the suf- was the conclusive of after brief This conclu- charge will not re- but did motion, requires we errone- etc. this effect judgment, file a re- third as- contains portion er, portion howev- discov- disturb the should raised. of his plain- $637.- com- com- Agents Authority—Sufficiency por- val- dis- ap- we or opinion BENFORD its assistant 2. the verdict was of the L. B. Lumber Error, 1003.*] hence an jury’s finding 5. Sales of such the evidence as to load to the conclusion that the (Court of 1710-1716; amount of work. without operations steam tion of accepted Cеnt. tendent plant, as authorized to er, president he had Dig. Cent. though Cent. Agents — [Ed. The motion [Ed. [Ed. Note.—For other [Ed. Note.—For other [Ed. Note.—For other Action Questions dence. Agents Authority—Estoppel. of Evidence. cation. Corporations Corporations Corporations purchase a steam fact, that for charge his act in Appellate Where the In an action for the Even great referred was influenced finding, §| use, had no Dig. May log loader, Hightower, Dig. Note.—For he held Dig. Note.—For evidence, Cеnt. in fact purchase. an action 1277-1283; purchase price bought it, when there is no evidence raising any Manufacturing Company the benefits thereof held received — from District — though (§ 441*) Warranty—Sufficiency weight and of a lumber charge 26, 1914. §§ log and Error finding KNOX. the loader. §§ §§ bee. Hiram Knox or when it is so the other reasons LUMBER authority Unauthorized Dig. superintendent buying general superintendent oe its that there was no 1629-1632; out courts are party June the loader would do a certain loader to the assistant 1596, 1702-1704, 1707, 1708, president contrаry Fact. had no against held evidence Dig. 426.*] sawmill Other the assistant daily reports rehearing §§ Judge. purchase Dec. (§ 410*) and that (§ 426*) — Dec. who solicited the 11, 1914.) objection 3938-3943; Dec. Rehearing 1718, 1724, 1726-1735, (No. 6623.) —432*) assistant § error, cases, cases, cases, cases, preponderance cases, Dig. MFG. should such corporation’s Court, Dig. corporation’s a lumber buy improper motive, plant purchase price a steam Dec. Texas. 1003*) ratified, — man'festly against is overruled. — jury finding without it was see complaining § see Acts see a steam load- authority. § see lumber see Officers to its Officers Officers 432.*] 441.*] CO. stated superintendent superintendent Polk charge had preponderance be sustained. authorized Denied Dig. Corporations, Corporations, Corporations,' warranty loader, the Benford Sales, Appeal and and anoth- for review. corporation —Review- — log loader, Galveston. knew that where et al. v. authority operation repudiat- use, purchase log question § County; corpora- Ratifi superin- sawmill sawmill Dig. almost 410.*] Cent. Evi even our § topic Dig. Dig. Key-No. Rep’r *For other cases see and section in Dec. & NUMBER Am. Series & Indexes

Case Details

Case Name: Old River Rice Irr. Co. v. Stubbs

Court Name: Court of Appeals of Texas

Date Published: May 19, 1914

Citation: 168 S.W. 28

Docket Number: No. 6534.

Court Abbreviation: Tex. App.