Grimes v. Watkins

Delany, J. Com. App.—

There are nine assignments of error, but it will not be necessary to discuss them all.

The first calls in question the refusal of the court to make W. W. Lunn a party. The merits of the case, we think, might be determined without the joinder of Lunn, and there was, therefore, no error in the ruling of the court.

The second assignment is to the ruling of the court which rejected defendant’s application for a continuance. It was a third application, the cause having been continued once by the plaintiffs and several times by consent. The application was made upon two grounds, only one of which will be considered.

On the 6tli of October, 1874, the defendant had filed an amended answer in which he set up an itemized account against the plaintiffs. This account was sworn to by defendant under the act of April % 1874. Acts of 1874, pp. 52-3; R. S., art. 2266. Just before the trial at the May term, 1877, the plaintiffs filed an affidavit in which they disputed a part of this account, thus imposing upon the defendant the burden of proof. To procure the necessary testimony the defendant applied for a continuance, which was refused. In this,, we think, the court erred.

It is held that the filing of an amendment which operates as a surprise to the opposite party is a sufficient cause for a continuance, provided it renders necessary the production of evidence which would not have been required if the amendment had riot been filed. Pasch. Dig., 54; Fisk v. Miller, 13 Tex., 224. Here there was not, indeed, an amendment, but there was an affidavit which had the same effect, and, in our opinion, the same rule should be applied to ■both cases.

In view of another trial it will be proper to notice the third assignment, which relates to the testimony of the witness Pierce. The trial took place in May, 1877. The witness was called to testify as to the number of cattle which ran in certain brands in 1870 and 1871. He declared that he had neither knowledge nor recollection on the subject. He had not been on the range for a number of years, and could do nothing more than guess at the number of the •cattle.

His testimony should not have been admitted. A witness should speak from his knowledge or recollection. And if, after refreshing his memory by all legitimate means, he still has no recollection upon the subject, he is not a competent witness. 1 Greenl. Ev., 436, 440. This case is not like that of Albright v. Corley, 40 Tex., 106. In that case the witnesses had some means of information; here the witness had none.

The fifth and sixth assignments may be considered together.

The fifth assignment is as follows: “ The court erred in his general •charge in the matter relating to the disposition or sale by W. W. Lunn of the partnership property (cattle) of said W. W. Lunn and Edwin Lunn.” And appellant presents this proposition: “ If W. W. Lunn, one of the partners, contracted to sell the partnership cattle before dissolution by the death of the other partner, he had the right as survivor, in good faith, to complete said contract by delivery ■of the cattle and receipt of the price after said dissolution.”

This supposed sale is evidenced by the following instrument:

“ May 17, 1870.

“ W. B. Grimes is hereby authorized to collect and kill all the cattle (in certain brands mentioned), taking a fair proportion of calves, yearlings, two-year-olds, three-year-olds, cows, four-year-olds and upwards, in payment for which said Grimes is to pay for same $3 per head, collecting them at his own expense.”

The instrument also authorized Grimes to take the beeves in certain other brands at a certain price per head. It was signed by W. W. Lunn and by Grimes.

The court charged the jury, at the request of the plaintiffs, that this instrument was not to be regarded by them as a bill of sale of the brands therein mentioned, but merely as a power given to Grimes to kill out of certain stocks certain classes of cattle.

This charge was correct as to those stocks out of which Grimes was to take only the beeves; but as to the stocks mentioned in the first part of the instrument we incline to the opinion that it ivas erroneous. The witnesses speak of the transaction as a sale, and one of them says that the sale was notorious. The parties themselves seem to have treated it as a sale. The meaning of the instrument upon its face is doubtful; and we think the question should have been left to the jury to determine whether or not the transaction ivas a sale. Masterson v. Goodlett, 46 Tex., 402; Ferguson v. Ferguson, 27 Tex., 340.

If we are correct in this view of the case, then that portion of the general charge pointed out in the fifth assignment of error is erroneous. One of the stocks mentioned in the first part of the contract was owned jointly by W. W. Lunn and his brother Edwin. Concerning this the court charged as follows: “If, during the life-time of Edwin Lunn, and after he attained full age, W. W. Lunn did enter into a contract with Grimes in relation to the sale of partnership cattle of himself and the said Edwin, . . . then what was done under said contract, to the death of Edwin, is to ba .taken as the act of said Edwin; . . . but when he died the authority of his partner to continue to sell under said contract ceased.” The contract was executed on the 17th of May. Edwin died on the :20th of June following. The charge assumes that W. W. Lunn continued to sell after the death of Edwin. This was incorrect. If ■there was a sale at all, it was consummated when the instrument was executed. Lunn was not to deliver the cattle. There was nothing left for him to do but to receive the money as Grimes collected .the cattle.

The seventh assignment relates to certain charges which were asked by the defendant and refused. The first and seventh of these ■charges were to the effect that, if the letter signed by W. W. Lunn .and the plaintiffs was executed in good faith, and was for the advantage of the plaintiffs, and defendant ivas thereby induced to act, •so that the disavowal now would be to his prejudice, and place him. in a worse position than he would otherwise occupy, and if the .plaintiffs were at that time of years of discretion, they cannot now .avoid it, but are estopped thereby.

Our opinion is that the plaintiffs should not be held to be es-topped by this letter. There is no evidence of fraud or concealment on their part. It is clear also that they did not fully understand the effect that their act might have upon their own interests. They supposed that they were signing the paper for their brother’s benefit, and their distress and anxiety about him must have rendered them incapable of deliberate action. It is, however, but justice to the defendant to say that there is nothing in the record to show any attempt on his part to take advantage of the plaintiffs.

The second of the refused charges ivas in effect that if the defendant purchased the cattle in good faith, then he was liable to the-plaintiffs, if at all, only for the value at the time of the purchase, with interest at eight per cent.

The court, in the general charge, had given as the measure of damages the highest market price of the cattle at anytime between the date of the purchase or conversion and the date of the trial. This, we think, was error. The measure of damages in this case is the value of the property at the date of the appropriation with legal interest. Masterson v. Goodlett, 46 Tex., 402; Hillebrant v. Brewer et al., 6 Tex., 45.

The defendant also asked instructions upon his plea of limitations, that if W. W. Lunn sold to the defendant the cattle of theLunn brothers while they were living and after they attained their-majority, then the action of the plaintiffs was barred as to the interests of thos.e two brothers. It is clear that if such a sale was made, a cause of action at once accrued to the two brothers, and the statute commenced to run against them. And having commenced to run in their life-time, it would not cease upon their death, except for twelve months, under the statute, unless administration was commenced before that time. Pasch. Dig., 4607; R. S., 3217.

In this case the minority of the plaintiffs would not protect them.

We find no other errors in the record; but for those heretofore pointed out, our opinion is that the judgment should be reversed and the cause remanded.

Beveksed and remanded.

[Opinion approved March 19, 1883.]