Mendiola v. Garza Bros.

Plaintiffs alleged that they raised and owned in the republic of Mexico a quantity of wheat in June, 1915; that one-third of this amount they had agreed to pay to Gen. Hernandez for police protection; that defendant, Mendiola, took from plaintiffs the one-third for Gen. Hernandez, and also took the remaining two-thirds, amounting to 13,347 kilos, the reasonable value of which was $337.33; that defendant had the wheat shipped to a flourmill, had it ground into flour, and took the flour; that he promised to pay for the wheat, but failed to do so, though requested so to do. Defendant answered by general and special exceptions and a general denial. The case was submitted to a jury upon an oral charge. The jury found a general verdict for plaintiffs. The court entered judgment in accordance with the verdict of the jury, in favor of plaintiffs for $337.33 and for all costs. Motion for new trial was overruled, and defendant perfected this appeal.

Under the first assignment appellant urges, as fundamental error, that there is no evidence to support the judgment; that the court was without jurisdiction, and, under several propositions, called, by appellant, "minor propositions," contends that the debt sued for was an original debt of Gen. Hernandez; that the promise of defendant was wholly collateral, and therefore within the statute of frauds. The evidence shows that Mendiola ordered the two-thirds of the wheat sued for to be sent to a flourmill; that he promised to pay for the wheat; that he paid the mill for grinding the wheat into flour with 75 per cent. of the bran; that the flour from the wheat and the balance of the bran was sent to defendant by the mill; that defendant promised J. A. Bonnet, agent for plaintiffs, to pay for the wheat; that he never paid for it. This evidence justified the jury's verdict, and supports the judgment thereon.

The evidence does not bring plaintiffs' claim against Mendiola within the statute of frauds, for Mendiola took the wheat himself, and should pay for it himself, as he promised he would do. There is no debt proven against Gen. Hernandez. If there were an original debt in favor of plaintiffs against Hernandez, defendant's subsequent promise to pay it would not have been affected by the statute of frauds, because defendant received for himself the wheat. Bank v. Freeman (Sup.) 181 S.W. 187; Harp v. Hamilton, 177 S.W. 565.

The contention, suggested under this first assignment, that the trial court was without jurisdiction, is without merit. The appellate courts have repeatedly held that Texas courts have jurisdiction of causes arising under similar circumstances in Mexico. Banco Minero v. Ross Masterson, 106 Tex. 522, 172 S.W. 711; Railway v. Mitten,13 Tex. Civ. App. 653, 36 S.W. 282.

The first assignment must be overruled.

Appellant's second assignment complains of the admission in evidence of a letter from the flourmill company to Mendiola, the defendant. Appellant's third assignment complains of the admission in evidence of a letter from defendant, Mendiola, to the flourmill company. The objections were that the letters were not properly proven, were irrelevant and immaterial. The letters were material and relevant, because the letter from the mill to defendant identified the wheat shipped in car N.M. No. 9458; referred to statement inclosed, giving results of grinding. The letter is evidence that the wheat and bran from that wheat were shipped by the mill in car N.M. No. 25992, and was addressed to defendant. The date corresponded with the date of the conversion sued for. This letter was identified by its writer, the manager of the mill, who also testified that the wheat was ground and the flour delivered to Mendiola, as he wrote in the letter. The letter from Mendiola was signed by Mendiola, the defendant, as testified by Gomez, who knew his handwriting. It acknowledged receipt of the letter from the mill company. This letter is evidence that defendant sent the wheat in car N.M. No. 9458 to the mill to be ground and acquiesced in the results received, The letters were properly proven and were material and relevant. The second and third assignments are overruled.

Appellant's fourth, fifth, sixth, and seventh assignments all complain of the order of the court overruling defendant's exceptions to plaintiffs' petition. The petition clearly stated a cause of action in favor of plaintiffs against defendant. The averments were sufficient to give defendant full notice of all that plaintiffs expected to prove. The exceptions were properly overruled.

There is no error in the record. The judgment is affirmed.