Memphis Cotton Oil Co. v. Goode , 1914 Tex. App. LEXIS 892 ( 1914 )

HUFF, C. J.

The appellee, Goode, brought suit against appellant, Memphis Cotton Oil Company, upon an alleged contract, to the effect that appellant agreed to furnish feeding pens for 1,000 head of steers at 60 cents per head, for the feeding term, which is alleged to be about 90 days. He alleges further, after the cattle had remained on feed for about that term, he attempted to ship them out, but that appellant refused to permit him to do so unless he would pay 60 cents per month, which they claim was the contract price for the use of the pens, amounting to the sum of $1,892.44; that, in order to get possession of his cattle, he entered into an agreement with appellant to deposit that sum in the bank to abide a settlement and adjustment of the controversy, but they had failed or refused to adjust it, and hence the suit.

The appellant' answered that the contract price to be paid for the use of the pens was the sum of 60 cents per head per month while said steers remained in said pens. The case was submitted to a jury upon special issue, which was as follows:

“What agreement, if any, was made between the parties hereto as to what plaintiff should pay for the use of the pens and water and other facilities testified about? That is to say: Was it understood between plaintiff, Goode, and A. C. Hall that plaintiff would pay 60 cents per head per month for the use of said pens and water and'yard facilities testified about; or was it the understanding between said parties that plaintiff would pay 60 cents per head for the term for the use of said pens, water, and facilities?”

The jury answered:

“We, the jury, find that the price to be paid for the pens, etc., was 60 cents per head for the term.”

Upon this finding the court entered judgment in favor of plaintiff, appellee herein, against the defendant, appellant, for the sum of §1,261.62, and from this judgment the appeal is prosecuted.

The first assignment of error is substantially that the court erred in overruling and in not sustaining the defendant’s objections to the testimony of the plaintiff, Wallace Goode, which is hereinafter set out by us. Goode had testified that he went to Memphis to see about procuring pens and making the contract, and that while there he called upon A. C. Hall, the manager of the company, and entered into the contract as claimed by him. The testimony objected to is set out in the bill of exceptions as follows:

“Q. Did you know, at the time you contracted for the feed at Memphis, what you could get feed pens for at other oil mills in this country? A. Yes, sir. Q. Did you know at that time what you could get feed pens for at Chickasha, Old.? A. Yes, sir. Q. What could you get feed pens for there?”

And thereupon the defendant objected to the last question and the answer thereto for the reason that it was bound to be based on hearsay — was not tending to prove any issue in the case. It was not shown that the same conditions existed at Chickasha that existed at Memphis, and it was wholly irrelevant and immaterial, and the proper predicate had not been laid lor the introduction of such testimony, and the court overruled all such objections, to which ruling the defendant then and there excepted, and thereupon plaintiff’s counsel asked the said plaintiff, Goode, the following question:

“Did you inform Mr. Hall what you could get feed pens for at Chickasha? A. Yes, sir; and showed him a telegram from there. Q. What could you have gotten pens for at that season at Chickasha, Okl.?”

And thereupon defendant’s counsel objected to said last question and the answer thereto for the reasons heretofore stated, and the court overruled said objection and permitted the witness to answer as follows:

“A. Fifty cents per feeding term. Q. Did you know at what price .you could get feeding pens for at other places?”

And thereupon defendant objected to the said question and the answer thereto for the reason heretofore stated in this bill, and the court overruled said objection and permitted the witness to answer said question as follows:

“Yes, sir; two or three other places. Al-tus, Okl., was one, and Hobart another. I did not tell Hall what I could get the pens for at these places so much as I did the one I got the telegram from. I let him have the telegram. I asked him to retain the telegram and show his company.”

To which questions and answers the appellant reserved its bill of exceptions.

It appears upon cross-examination by appellant the witness testified as follows:

“The only information I gave Mr. Hall about what I could get the pens at Chickasha was based upon that telegram and nothing else. It was purely information I received by a telegraph message signed by some one else; signed by the mill company — somebody over there at Chickasha. That telegram stated that I could have the pens for fifty cents per head for the term, 1 think.”

Upon redirect examination the witness testified substantially the same as he did upon his direct examination, but there appears to have been, no bill of exceptions taken to his testimony upon redirect examination.

[1 ] The issue in this case was, not the value of the use of the feed pens per head, but what was the contract per head? Was the contract price to be paid per month or per term? This was the issue. Perhaps if the issue had been its value, the objection might then be tenable that the statement was hearsay. We think if what others paid or offered to pay was considered by the parties at the time and entered into the negotiations of the parol contract, it would be original testimony. It is not every declaration made by others that is hearsay. As for instance: Parents suing for damages for the death of their son, his statement before his death that he would remain and take care of them is admissible, as showing a desire and the intent to support the parents, and hence probable pecuniary aid which he would have given. Railway Co. v. Knight, 45 S. W. 167; Railway Co. v. White, 23 Tex. Civ. App. 280, 56 S. W. 206; Railway Co. v. Van Belle, 26 Tex. Civ. App. 511, 64 S. W. 397.

“So where proof is to be made of a parol contract, or where, for other reasons, the statements of a person are relevant, such statements may be proved by third persons, who were present, the same as by the one who used the language.” Elliott on Evidence, § 328, vol. 1.

Mr. Jones on Evidence says:

“It is hardly necessary to cite authorities to the obvious proposition that when proof is to be made of a parol contract, or when, for other reasons, the statements of a person are relevant, such statements may be proved by third persons who were present as well as by one who used the language. In such case the statements are not hearsay but substantive evidence.” Jones on Evidence, § 300.

“When declarations or acts accompany the-fact in controversy, and tend to illustrate or explain it, they are treated, not as hearsay, but as original evidence; in other words, as part of the res gestee. * * * It is hardly necessary to add that when the declarations form part of the contract, or the performance of a contract, they are relevant and will be received.” Jones on Evidence, §§ 344 and 235.

In Goldman v. Blum, 58 Tex. 630, 641, the court said:

“What was said and done by the parties while the business was being arranged, and while the transaction was then depending et dum fervet opus, is admissible in evidence as part of the res gestae, and is considered as well calculated, in the absence of direct evidence, to shed light on the real character of the transaction.”

We cite the following cases as illustrating the rule: Ft. Worth Publishing Co. v. Hitson, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551; Sparks v. De Bord, 110 S. W. 757; Fellman v. Smith, 20 Tex. 99; Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 389.

It will be observed from the bill of exceptions that the witness did not answer what he could get feed pens for at Chickasha until fie testified he informed Hall, who made the contract with Goode, of that fact. Pie testified he showed and gave Hall the telegram, who kept it to show his company; but the witness did not testify as to its contents on direct examination. On cross-examination, in order to show the witness had no knowledge of the price for the use of tens at Chickasha, and that what he knew was based upon the telegram, appellant sought to show that such knowledge was based alone upon the telegram, and it was then he stated, in answer to appellant’s cross-examination, the contents of the telegram.

[2] If the witness could not have testified under the predicate lain to the contents of the telegram upon his direct examination, which we do not at this time decide, he did not testify on direct examination thereto, but such testimony was brought out by the appellant upon cross-examination, of which we do not think it can complain at this time.

Eacts happening just before and after the principal transaction, and tending to show knowledge or intent of the party, are relevant. Horton v. Reynolds, 8 Tex. 284. The testimony was not offered, as we understand, to prove the value for the use of the pens at Chickasha, but to show at that time Goode knew and represented to Hall that he did. This representation to Hall was not hearsay but was part of the transaction — the inducement to the contract part of the res gestse. It is a circumstance incident to and connected with the contract, explaining why the price was fixed at 60 cents per head for the term, instead of 60 cents per head per month. The declarations or statements were not made by others out of hearing of appellant, but were made to appellant, which induced the making of the contract for the term, instead of by the month. We overrule the first assignment of error.

The second assignment of error is also overruled. If there was error in the particulars complained of, which we do not now decide, it was immaterial and could not have affected the case.

The case will be affirmed.