Tull v. Turley ( 1931 )

On Motion for Rehearing.

Supplemental to our original opinion, and for the purpose of covering two questions not discussed in that opinion, we file the following:

The trial court submitted to the jury the issue as to whether or not the plaintiff had such financial arrangements as would have enabled him to carry out the rental contract with the defendant. This issue was improperly submitted, for the evidence did not show any arrangement or understanding made with any person for that purpose by the plaintiff which had been brought to the knowledge of the defendant and upon which the defendant could rely to authorize the submission of such issue. It is true that the witness Roberts, who appears to have been a man with considerable property, testified that he told the plaintiff, who was his son-in-law, that he would stand behind him and enable him to carry out his contract with the defendant. But it was not shown that this was ever communicated to the defendant. Such an agreement, being an agreement to stand good for the debt or default of another person, in order to be binding, must have been in writing and made direct to the defendant in order for the defendant to have legally relied on same.

“The rule, ‘Res inter alios acta,’ precludes introduction of evidence of transactions by which the prcjponent was in no way affected and to which he was in no sense a party. Levine Bros. v. Mantell, 111 S. E. 501, 504, 90 W. Va. 166.” Words and Phrases, Third Series, Vol. 6, page 745. Pierce v. Wimberly, 78 Tex. 187, 14 S. W. 454; Griffith v. Lake (Tex. Sup.) 12 S. W. 285.

The measure of damages which the plaintiff was entitled to recover, if any, would ■be the market value of three-fourths of the cotton and two-thirds of other crops of feed-stuff, after deducting all expenses of planting, cultivating, harvesting, and marketing the whole of the crop, and the court erred in sub- • mitting to the jury the issue he did submit, which issue so submitted was in words as follows: .

“What would be the reasonable cash market value of the crops which the plaintiff Turley would have grown in reasonable probability on defendant Tull’s farm during the .crop year of 1930, after deducting all expenses reasonable and necessary in planting, cultivating, harvesting and marketing such crop?”

The last paragraph is to be understood as being in connection with the discussion in the original opinion of the itemization of the expenses attending the crop production attempted to be estimated by the plaintiff and his witnesses, as to which the plaintiff testified as to the net profit on the crop.

Appellee’s motion is therefore accordingly overruled.