131 S.W. 249 | Tex. App. | 1910
C. F. Rudolph and O. F. Loomis each filed a suit against Dr. E. Snow to recover the sum of eight hundred and fifty dollars and fifty-eight cents, for which the defendant was alleged to be indebted to them in the following way: It was alleged that one, Eli Tuttle, a non-resident, through C. F. Rudolph, his local agent, had entered into a contract with Rudolph and Loomis whereby a certain tract of land had been sold to said Rudolph and Loomis, upon which contract of purchase they had placed a forfeit of five hundred dollars, and that the defendant Snow being desirous of substituting himself as purchaser for the land, the parties agreed amongst themselves that Snow should place in the bank five hundred dollars in lieu of the deposit of Rudolph and Loomis, and furthermore, he should pay the balance of the purchase money to Tuttle, having the deed made directly to him, after which Snow was to sell the land and divide the profits equally between himself and the other parties after allowing himself interest on the money advanced by him in the purchase. It was alleged the defendant had sold the land at a profit of three thousand four hundred and two dollars and thirty-four cents and each plaintiff sought to recover a one-fourth interest in such profit. These suits were subsequently consolidated in the name of C. F. Rudolph upon his allegation that he had purchased the interest of O. F. Loomis in the transaction; and from a judgment in Rudolph's favor for the sum of one thousand three hundred and twelve dollars and twenty-seven cents the defendant, Dr. E. Snow, prosecutes this writ of error.
Whatever may have been the vice in the suits originally brought by Rudolph and Loomis against plaintiff in error in respect to plaintiff in error's contention that the cause of action was thus split to his prejudice, we think unmistakably that vice was cured by the subsequent consolidation of the cases, and we see no reason why Rudolph alone, upon becoming the owner of the Loomis interest in the subject matter of litigation, could not prosecute the suit. The matter of costs, if that could be of any concern at all in the present case, is not presented in such a way as to merit consideration. We can not see how plaintiff in error's rights in this respect are affected at all, since the costs are awarded against him.
Plaintiff in error next insists that after defendant in error's amendment, wherein he set up the purchase of the Loomis interest, he, the plaintiff in error, should have been again cited, since it was a setting up of a new cause of action. There is obviously no merit in this assignment, since the appearance by plaintiff in error by numerous demurrers to the amended petition dispensed with the necessity for a new service, *238 even if the amendment set up a new cause of action, which we do not think it did.
Any supposed errors with reference to the foreclosure of the attachment lien against plaintiff in error are cured by the remittitur of that lien filed by defendant in error in the District Court prior to plaintiff in error's taking the transcript from that court.
There was no error in permitting plaintiff to testify that he and Loomis executed a note to the bank for the five hundred dollars alleged to have been put up as earnest money, as against the defendant's objection that the allegations were that it was a cash deposit, since the substance of the issue only need be proved; and besides, this was a matter of inducement only and had little or no bearing whatever upon the real issue in the case, that is, whether or not defendant Snow substituted himself as purchaser of the land promising to pay to plaintiff and Loomis one-half the net profits of the venture.
We do not think plaintiff in error can invoke the rule of law that an agent can not make a sale of his principal's property to himself, since that is a question between the agent and his principal, and if the latter elects to waive the fraud growing out of the duplicity of his agent, a stranger can not complain. The transaction as to plaintiff in error is a completed one, and, as before stated, the vital question to be determined is, did the parties to this suit make the contract alleged, and not whether the contract between Tuttle and Rudolph and Loomis was voidable for Rudolph's fraud.
We can not say the verdict of the jury is unsupported by the evidence. It is not the province of this court to pass upon conflicts in the evidence but that duty devolves upon the trial court and jury. The testimony of defendant in error supports the verdict, and it matters not that the testimony of plaintiff in error does not do so.
We find no error in the judgment and it is affirmed.
Affirmed.