*1 Tes.) PEOPLES v. BROCKMAN ' opinion they present “in the no reversible case our forfeited as the case carry error, signers duty sam,e to affirm to hence it becomes of shall fail refuse our or part the out “Their of their of this contract.”
part” agreement applied appellees the to of as convey the to the or forfeit real estate $1,000. applied appellants, part” As to “their agreement convey of was to the stock ux.† PEOPLES v. BROCKMAN et merchandise, etc., compete not in busi- (Court San Anto- of Civil of Texas. appellees period years. ness with for a of two Motion nio. Jan. think We the inten- 1913.) Rehearing, Feb. parties light agree- tion the of the of — — (§ 48*) or 1. Action Joindeb Causes appellants ment was that should forfeit Tokt Contract. convey refusal the merchan- Causes of action for tort and for breach joined, conveyance con- are dise after such where or grew out of nected each other or the same with competition appellees with the within # years. why two stated can see no We Action, cases, other see Cent. [Ed. Note.—For parties may agreements, not and Dig. 490-510; Dig. § 48.*] §§ Dec. projects no rule know law itself into 48*) (§ Causes —Tort oe —Joinder destroys such an such inten- Contract. In an action to a balance due recover tion. It not contended that purchase price for the con- the agreed upon unjust oppressive or dis- defendant version certain where proportionate damages pleaded horses for that would re- the both the cattle and already paid, and consideration the agreement. sult from breach of the claim that there was no property exchanged the character of joined, since one the the causes were probable competition naturally loss from respect by parties, the with causes, be determined resulting damages the makes uncertain was. what estimation, difficult circum- is a Action, cases, other see Cent. [Ed. Note.—For indicating stance intenton Dig. 490-510; Dig. 48.*] § Dec. §§ parties liquidated on the amount of Necessity (§ 355*) 3. Sales Off —Set- agreed damages any event on failure Plea. perform “part” In an action a husband and wife for either their con- purchase evidence price of cattle owned It tract. also occurs us that doubt defendant, that, the certain of the after parties the intention of the husband retook and pro- inadmissible, indicated is removed absence of the clear plea of set-off. visions of last clause of the contract. cases, Sales, [Ed. other see Note.—For Cent. provides Said clause written Dig. .Dig. 1025-1043; Dec. §§ deposited ment and both notes shall be — Requests (§ 260*) 4. Trial Covered meaning pending performance, hank local Other Instructions. exchange properties by proper pur- In an action price transfers, chase of cattle and for conversion of in case either fails horses, where defendant a bill of sale convey shall both the and cattle for the consider- injured party. bank be delivered to the paid, plaintiff already ation and which claim- substance, ed or recites, was obtained then clause after misrepresentation, instructions that if conveyance respective properties, obtained, bill of so. in- appellees, the contract shall be delivered to tended as a of all the stock for the Biros, engag- consideration ant, intended to stock, to find for the item defend- “on of Orenbaum not even if the bill sale was not stipulated.” ing in business as herein This be a of title to the opinion leaves no room for clause plaintiff and defendant made an oral contract of sale of the the cattle and horses for concerning parties. the intention of doubt defendant, for and a consideration to find intended that It shows special defenses, submitted the exchange make the refused event find for preponderance If, had shown that the evidence were to forfeit sum. of sale the bill did not state the true however, hitch arose executed trade, and that the horses were not to be conveyance, the mutual then the contract procured by fraud, cluded properly short, denied. be delivered to In was to cases, Trial, other part [Ed. Note.—For Cent. performed their until Dig. 651-659; Dig. 260.*] Dec. §§ § the bank was the con- But, parties. soon as tract for Sales Admis —Price—Evidence Pleadings. sible performed one condition lees purchase of 104 liability required perform evidence head of by plaintiff’s son, ceased, this number of and calf her bank was to a cow plaintiff were cut out and left protect competi- request was admissible under a part appellants. tion on nial. carefully second, examined Sales, Note.—For [Ed. assignments error, third, fifth fourth and Dee. cases see same otter NUMBER in *For by Supreme †Writ of error denied Court.
CO O GO requested D. and fendant Brockman and. Z. On urged sign them to all the Pleading Demurrek—Hearing plaintiffs, stock live and hors- cattle AND DETEBMINATION. a demurrer es, $1,000; which recited a consideration of misjoinder petition in for of causes tort sign that said at first refused to on the and on contract was overruled consideration, instrument, ground they because the true that were connected transaction, the other allegations bearing arose out of the same therein, recited and consideredas horses, cluded the in the sale made which were not included on connection. Peoples- him; that said |Ed. Pleading, Note.—Por other acknowledged agreement, original correctness of out, set hereinbefore and stat- County; Court, Appeal from District Uvalde signing ed that the of the in no- Burney, Judge. R. H. original trade; manner affected said that he by H. H. wife Brockman and represented further that desired he S, Peoples. plaintiffs, Judgment and J. defendant for said bill of sale for the sole of show- appeals. and affirmed. Reformed ing might same to the bank order that he 'against Old, Uvalde, better handle L. indebtedness said Martin & Martin and stock, money appellant. Penley order to raise for G. B. and Claude Law- pay satisfy mortgage; off rence, said Uvalde, note and for further that he did not intend said instru- ment a to, as a bill of but use it MOURSUND, J. Brockman and mortgage, security, or as collateral husband and sued J. means of which he would be able to raise the Peoples alleging Jr., and Joel that money necessary pay amount said off the Mary said Brockman sold note; also that he desired the horses in- Peoples said J. S. a certain stock of cattle instrument, cluded in the said to be delivered at ranch in Barksdale might numbers, fall short and not county, agreed pay Edwards her which for paying be sufficient to him for reimburse off cattle; market value said note, said in which event he wanted -a suffi- payment paying Peoples was to be made said J. S. price, cient number at their market $1,000 owing by plain- off a note for shortage pay any, him for Uvalde, tiff to State Bank of and the re- note; amount of said paid to make the Joel said cash; they mainder to deliv- Peoples falsely is now fraudu- Peoples ered to J. said 104 head .of the lently claiming such instrument to be an un- per head, cattle of the market value of $15 property conditional of sale to the making said with de- paid $1,'560; Peoples a total of claiming therein, scribed title to such note, breached plaintiffs. property against remain-, to the of the Defendants, January 6, 1911, ing whereupon on $560, filed a rescinded said against plaintiffs Z. remaining cross-action D. contract as cattle owned sequestrated Brockman, es, mules, remaining hors- them out of said stock cattle. Plaintiffs fur- claiming plaintiffs, alleged, ther time of Peoples said J. S. Mary the owner of all mentioned, above Brock- 4, 1911, they of the same. March man filed stated to said Joel S. that aft- original answer, exceptions, general denial, delivery their rious which contained va- er to of the if he should decide purchase plea a, belonging her, some January 7, Peoples bought running ranch, that on from the on said she would sell Mary Z. Brockman and D. to to ment with on the entire stock of horses and for but no contract plaintiffs’ petition, brands mentioned in for to said reference horses was then amount due on them, said or thereafter to between Mary days which said a few after the of said cat- Brockman and Z. D. tle ples; Jr., wrongfully Brockman executed defendants Joel S. and Joel Peo- to defendant J. S. bill of said horses right, without They prayed knowledge cattle. and without or consent of possession judgment plaintiffs, possession the balance either of took from the and cattle. mule, five horses and a which Upon trial it was benefit; to their own use and that'neither animals, Peoples, Jr., D. value of said Z. Brockman nor at the Joel date suit, $415, conversion interest elimi of the for which prayed judgment, nated from the same. a tiffs trial resulted amount as to be due alleged well $560, judgment plain amount of for said $696, for the cattle. and for Plaintiffs further re plain 7, 1910, maining originally belonging that about stock days tiffs, making pa- after the from which J. S. about two rol has ; n out, appealed. set above and before the up- said The first of error Joel Peo- is báséd ples overruling special exception to said went Brockman and on the of a at- same & *For other in-Dee. Am. -Rep’r NUMBER Indéxes Tex.) PEOPLES BROCKMAN contract from either
such of each
ing,
him in his
action,
tained, they recover the balance
should also determine all
leged
right
include
man
ulently procured.
one for
trade are
609;
being
or are connected with
asserted
settled.
tutes
trade between these
damages resulting from the conversion of the
other
tract of sale. We are of the
two causes of action are
claims
Mrs. Brockman
tacking
the
days
assignment must be overruled. The contro
contract for sale of the
horses.
tends the trade was evidenced
Chambers,
contended
therefore overrule the
ted
Brockman and Joel
versies
also,
tion. Loan Ass’n v.
joined
trade was made.
W.
appellant
between
with each other or
plains
[3] The second
[2] If the
W.
pursuance
Merchants’
tl-ade
and recovers all other stock
the remainder
was made
App. 246,
be considered
claims
Hoskins Velasco Nat.
139,
conversion,
Emerson
Under our
words,
called
claimed under the
to constitute
The
the amount due
because the court refused to
based
an action for breach
grew
is
70 L. R. A.
If
tort,
91 S.
grow
by
sustained,
established,
cross-action;
41
but not of her horses.
upon
that the
January 7th,
he connects
pleadings
on the breach of
of such claim takes
Harris v.
are based
out of a trade between
real
107
Tex. Civ.
Bank,
provided they
verbal and
W.
action based
and,
out of the same transaction
sues for balance due on
liberal
it is
Nash,
assignment
869;
issue What was
party
She admits- the sale
determine
Biering,
he owes
parties?
when the terms of the
grew
tort was based
136
326,
of defendant’s answer once
horses
aid of
assignment.
show that
procedure,
of the horses consti
124
tort, yet
Kirby
his act with
604;
properly joined,
Brockman contends
Cain,
is,
stock. The
while
rights,
made
109
7th. Mrs. Brock-
out of the same
subject-matter
trade,
Wis.
opinion
other,
sale
ground
the summer of
standpoint.
*3
of contract
been
86 Tex.
the trade made
Farmers’
plaintiffs’
Bank,
of error com
and it is not five head of cattle under his contract with
are connected
Lumber Co. v.
632,
Am. St.
41 Tex.
'Peoples
the
and for the
sued
a
it is admit
contract,
the act
369,
was fraud
a suit
which are
converted,
converted.
couple
then this
95 W.
question,
are sus
the con
sale;
48
tort.
permit
102
claims
causes
court,
S.
noth
Bank
peti
Kep.
Tex.
con
sale pleadings,
See,
one Mary Brockman,
al
an
N.
If
in bill of
if she and J.
find
refusal of the
affirmative submission of
bill of sale did not state the true
ants tion
of
and so
osition made that defendant was entitled
been
to have his
affirmatively;
as
for the sole consideration therein
lant,
not show that
by preponderance
sentation,
by Mary
ories for
sale was not obtained
title
rule the
of
mortgage
would not
Civ. Statutes
Warnell,