Keesey and Murphy v. Old

It does not appear from the petition that Caruthers was the principal obligor in the contract sued on. He is sued merely as a joint contractor with the other defendants. Looking to the evidence, we do not find that he is primarily liable, if he is liable at all. The evidence tends rather to show that he did not join in the contract, but allowed his official position and acts as an officer to be used by the other defendants to test the question of the validity of the pretended removal of the county seat from Fort Davis to Marfa, for which purpose he refused to remove to Marfa and to register bonds issued by the Commissioners Court to build a court house and jail at that place. Had he been sued and not served, the discontinuance as to him and the prosecution of the suit against the joint contractors served would have been allowed under the statute; and if he had not been joined at all with them as a defendant the rule would be the same. Sayles' Civ. Stats., arts. 1256-1259, inclusive; Wooters v. Smith, 56 Tex. 198 [56 Tex. 198]. It is not shown by plea or otherwise how his codefendants would have been prejudiced by his dismissal.

There were no objections made nor exceptions taken or plea filed in the lower court to the dismissal, and no notice was taken of it except by motion for new trial, and then upon the ground that he "was the principal in interest in the litigation for services in which plaintiff seeks to recover in this action, and a principal obligor as shown in plaintiff is petition; and the judgment recites the dismissal of this cause as to said defendant without anything in the record showing such dismissal or the allegations or proof or any of the circumstances which under the statute would authorize the order." There being no objection made to the order until after the judgment was rendered, at which time the evidence was all before the court indicating that Caruthers was not liable on the contract at all, there was no error in refusing a new trial upon such ground. It is not now shown, nor was it shown in the motion for a new trial, that any injury will result to appellants by the dismissal. Rev. Stats., art. 1259; White v. Leavitt, 20 Tex. 706. We do not see that we would be justified in revising the ruling of the court below in granting a new trial.

There was error, as claimed in the second assignment of error, in excluding the answer of T.O. Murphy, that plaintiff had declared to him that he did not expect to be paid for his services. The declaration was admissible as original evidence as an admission of plaintiff, and needed no predicate as in cases of impeaching testimony.

There was error in the court's charge, as claimed in the third assignment of error. The charge criticised is as follows: "If you believe that defendants Keesey and Murphy have shown by a preponderance of the evidence that they did not employ plaintiff as he claims they did, and did not promise to pay him any of the sums of money claimed by him," etc., etc., "then the jury will find for the defendants."

The defendants Murphy and Keesey filed a general denial to the petition, and specially denied that they had ever employed plaintiff or made the contract sued on. The error of the court is obvious. It is not relieved by the instruction in the first part of the charge to the effect that to entitle plaintiff to recover he must establish the contract sited on by a preponderance of the testimony; nor can it be said that the evidence is so conclusive in favor of plaintiff as to render the error harmless. The evidence as to the alleged contract is conflicting, and is quite positive on the side of defendants that they made no such contract. The solution of the question should have been left to the jury upon the whole case as made by the testimony, the burden of proof being upon the plaintiff to establish his cause of action as alleged. It would not be proper for us to discuss the evidence or to express any opinion as to its sufficiency or preponderance on either side. The charge was erroneous, and requires a reversal of the judgment, and we so decide. Other assignments of error need not be considered.

We conclude that the judgment should be reversed and that the cause be remanded.

Reversed and remanded.

Adopted October 27, 1891.