Cox v. Steed

N. A. Steed and C. H. Harris sued C. B. Cox and M. L. Steele to recover the sum of five thousand seven hundred and sixty-nine dollars, alleged to be due them under an agreement whereby the defendants were to pay the plaintiffs for the shrinkage in a certain lot of steers held in pens near Pampa, Texas. A very clear idea of the nature of the case may be had from the court's charge submitting the case, as follows:

"Now if you find and believe from the evidence, by a preponderance thereof, that plaintiffs had a contract with defendants for the delivery of the cattle described in plaintiffs' petition at Pampa, Texas, on April 20, 1908, to be received and paid for by defendants at $4.00 to $4.25 per hundredweight; and that by agreement with defendants plaintiffs drove said cattle to the Combination pasture near Pampa, Texas, on April 19, 1908, and were ready to deliver and weigh said cattle on April 20, 1908; and you further find that defendants refused to receive said cattle and notified plaintiffs that they would not receive and weigh said cattle until April 22, 1908; and you further find that plaintiffs declined and refused to deliver said cattle under the terms of the original contract, and hold the cattle until the said 22nd of April to be weighed, unless defendants would pay plaintiffs for such shrinkage or loss in weight as the cattle might sustain during the two additional days they would have to hold said cattle in said pasture, and that defendants agreed and contracted to pay plaintiffs for such loss in weight at the rates specified in the original contracts respectively, and to submit the question of the amount of such weight to arbitration within 30 days; and you further find that plaintiffs relying on such agreement delivered and weighed said cattle to defendants on April 22, 1908, and that defendants then refused to pay plaintiffs for such loss, if any, or to submit the matter to arbitration; and you further find that the cattle did lose in weight during the time they were held in the pasture after defendant should have received same, then you will find for the plaintiffs and assess their damages as hereinafter charged you."

From a judgment in favor of the plaintiffs, defendants have appealed.

There was no error in permitting the appellees to testify that the cattle in controversy were fed by them during the winter of 1907-1908; that they full fed them until they started with them to Pampa; and further to state how much feed and water was consumed during that time. This testimony tended to show the condition the cattle were in and the probability of their losing flesh by shrinkage upon being placed in what is designated the Combination pasture. The ruling is in no just sense in violation of the holding in Houston T. C. R. R. Co. v. Roberts, 101 Tex. 418. The answers of the witnesses in no way involved the consideration of a mixed question of law and fact, as in the Roberts case, but purely one of fact. Our conclusion in this respect also answers appellants' third assignment of error complaining that the court erred in permitting appellees to testify that they only brought one dry feed with them for the cattle and that the grass and peas in the Combination pasture scoured the cattle and made them lose flesh.

The contention is made in the fifth and sixth assignments that since only seven hundred head of the cattle belonged jointly to the appellees, and two hundred and forty-eight head of them belonged individually to appellee C. H. Harris, the court should have withdrawn from the consideration of the jury all testimony as to the damages to the two hundred and forty-eight head of cattle, since the action was by both appellees as a partnership; but, as will be seen from the manner in which the court submitted the case, the action was by both appellees against both the appellants for breach of appellants' agreement to pay to appellees jointly (irrespective of the extent of their individual interests in the cattle) for the loss on all the cattle incident to shrinkage while held in the pasture awaiting their reception by appellants.

There was error, however, in permitting appellees to prove by the witness, Lippold, that he delivered to appellants nineteen head of four-year-old steers, and that these cattle weighed an average of nine hundred and eighty-six pounds. The appellees had testified that their cattle weighed when delivered only eight hundred and sixty-eight pounds and some of them were five, six and seven-year-old steers and very large in size. It is plain to be seen that the tendency of this testimony was to show that appellees' cattle were for some reason not as heavy as they should have been, and was well calculated to induce the jury to believe that the loss was due in part, at least, to shrinkage while in the pasture. This comparison was not permissible. There is nothing in the evidence to indicate that the size, age and weight of Lippold's cattle would justly have any bearing upon the issues in this case. See Haynie v. Plano Mfg. Co., 36 Texas Civ. App. 567[36 Tex. Civ. App. 567] (82 S.W. 532); Hill v. Hanan Son, No. 6568, this day decided. For similar reasons the court erred in permitting appellee Harris and the witness Waggoner to testify that the two hundred and forty-eight head of Harris' cattle were sold by Harris to Waggoner and resold by Waggoner to Harris at four and one-fourth cents per pound, the cattle to be weighed at Pampa on April 20th, Waggoner guaranteeing that they would weigh twelve hundred pounds, and that at the time appellant Steele was present and stated that he thought the cattle ought to weigh twelve hundred pounds if properly fed. And also in permitting the witness Wynne to testify that he had a pasture adjoining the Combination pasture, and that the conditions in his pasture on April 20th as to grass were very poor, and that he did not know of any reason why the conditions would be better in the Combination pasture, unless they had had a fire. This witness stated that he had not been in the Combination pasture during the spring of 1908 and did not know the conditions existing therein with reference to grass.

There was no error in refusing the requested charge on contributory negligence, for such issue was not pleaded by appellants. All of appellants' assignments, though not disposed of seriatim, are nevertheless covered by the conclusions announced.

For the errors discussed the judgment is reversed and the cause remanded.

Reversed and remanded.