American Nat. Bank v. Haggerton

• Decision Date: 15 November 1922
• Docket Number: (No. 1961.)
• Citation: 250 S.W. 279
• Parties: AMERICAN NAT. BANK OF WICHITA FALLS et al. v. HAGGERTON.
• Court: Texas Court of Appeals

250 S.W. 279

AMERICAN NAT. BANK OF WICHITA FALLS et al. v. HAGGERTON.

(No. 1961.)

Court of Civil Appeals of Texas. Amarillo.

November 15, 1922.

On Motion for Rehearing, February 28, 1923.

Further Rehearing Denied March 21, 1923.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; E. W. Napier, Judge.

Action by Robert L. Haggerton against the American National Bank of Wichita Falls and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Bonner, Bonner & Sanford, of Wichita Falls, for appellants.

Kay, Akin & Kenley, of Wichita Falls, for appellee.

HUFF, C. J.

This suit was instituted by Haggerton, appellee, against the bank and G. C. Johnson, appellants, in the Seventy-Eighth district court of Wichita Falls, Tex., to recover the sum of $1,000 held in escrow by the bank under a lease contract between appellee and appellant Johnson. On the 29th day of January, 1920, Haggerton and Johnson entered into a contract whereby Haggerton sold and agreed to assign an oil lease to Johnson on 100 acres out of the center of the west half of the Geo. Leonard survey, in Montague county. Johnson agreed to pay therefor $10,000, as stipulated. Haggerton agreed to furnish Johnson or his attorney an abstract for examination showing good and merchantable title to said lease, to be furnished within five days thereafter, to have it examined, and if any defects be found in the title Haggerton was to be "advised of same in writing and objections not so made shall be deemed waived," and he was to have a reasonable time to have same removed, etc. Haggerton agreed to execute an assignment to the lease, which was to be placed in the American National Bank of Wichita Falls, and Johnson was to place $1,000 in said bank and the assignment and money to be held in escrow pending examination of title. If title was held good and merchantable, that sum was to be paid to Haggerton, and Johnson agreed on or before February 8, 1920, to pay into the bank an additional sum of $9,000, and the bank was to deliver the assignment to Johnson and the $10,000 to Haggerton. If Haggerton complied with the terms of the contract and Johnson failed or refused to pay, then the first payment, $1,000 deposited in the bank, was to be forfeited to Haggerton as liquidated damages for breach of the contract, and the bank was authorized to pay that sum to Haggerton. There was indorsed an agreement on the contract, extending the time for the completion of the contract to the 11th day of February, 1920, and providing for the reduction of the consideration to $6,600. An assignment was deposited with the bank, dated January 31, 1920, and executed by M. W. Flynt to G. C. Johnson, describing 100 acres out of the lease of a 400-acre tract in the Geo. Leonard survey; the description giving the metes and bounds of the 100 acres assigned. The appellee, in his petition, set out the execution of the contract and assignment by Flynt, which was deposited with the bank February 1, 1920; that owing to certain conditions the abstract was not furnished within the time specified in the contract, but was delivered within a day or two thereafter; that the parties to the contract, after the delivery of the abstract, changed the contract by writing, which was indorsed on the contract from $10,000 consideration to $6,600 and extending the time to February 11, 1920. This extension and change was duly signed by the parties to the contract. That appellee complied with his contract, but that appellants failed to perform. The appellee asked for judgment for the $1,000 deposited in the bank. The bank answered, admitting it held the money as alleged, but that both parties demanded it. It tendered the amount into court, to be paid to whom the court should adjudge the right. The appellant Johnson answered, first, that the appellee had a good cause of action as alleged, except as the same should be defeated by the answer of Johnson thereafter pleaded. This part of the answer seems to have been pleaded under rule 31 of the district courts. He further alleged that the land described in the assignment from Flynt was not the property appellee represented to appellant he was to get; that which was contracted for was represented by Haggerton as being close to a well being drilled and derived its value from its proximity thereto; that the land described in the assignment was an entirely different tract and of less value than that pointed out, for which reason appellant refused to accept the assignment; that appellee and his agents falsely and fraudulently represented that the land contracted for and then pointed out by him on the map as owned by him would be conveyed to appellant, but at the time for performance appellees tendered an assignment to an entirely different tract of land; that the rentals due on the lease to be assigned were due January 14, 1920, to the fee owner, but that appellant never presented any evidence in the abstract that it had been paid, though demanded by the appellant, etc.; that appellee did not own the lease when he made the contract or at any other time, but that it at all times was the property of Flynt, which was concealed from appellant; that appellee owned no oil or gas lease in Montague county, and the tender of the assignment was not a compliance with the contract.

The case was submitted on special issues. The jury returned answers favorable to the appellee, which are in effect: That appellant did not deliver to appellee a written opinion from his attorney, in which he pointed out an objection to the title in that it did not show the rentals were paid on the lease; that it was mutually understood between the parties at the time of the original contract, and at the time the change was made, that the 100 acres referred to in the contract, and the 100 acres described in the assignment, were one and the same; that the appellee had not either purposely or through mistake led appellant to believe that the 100 acres described in the contract was a different 100 acres, either wholly or partially, from the 100 acres described in the assignment. On the findings of the jury the court rendered judgment for appellee for the sum of $1,000. The necessary facts will be stated in further consideration of the propositions presented.

Proposition 1 asserts error in the action of the trial court granting the request of the jury to have read to them by the stenographer a portion of Haggerton's testimony, after they had retired and after the case had been submitted to them. It is shown by the bill of exceptions, after the jury had retired to consider of their verdict, they returned into court and requested that certain evidence be reproduced or read, stating they could not agree thereon. The appellant Johnson objected "to any testimony being re-read to the jury or reproduced to the jury, of whatever character," and "Johnson especially objected to the reading of said testimony to the jury or having it read to the jury unless all of the testimony of the said Haggerton was read to the jury at the same time, insisting that no evidence of any kind should be reproduced or re-read to the jury." The procedure of the court was as follows: When the jury made the request, he caused counsel for the parties to come before the court. The court reporter was procured to type certain portions of the testimony. The trial court in granting the bill appended to it the following:

"After the jury had retired in the above cause to consider of their verdict, they made known to the court that they wanted to have reproduced the testimony of Haggerton on the point covered by the evidence set out above, and the court thereupon summoned counsel for both plaintiff and defendant and had them present and then had the court reporter find in his notes the testimony of the said witnesses on the point called for by the jury and which he copied and read to the jury as above, and at the time the court reporter said that the testimony read and reproduced above was all of the testimony of the witness on said point"

The testimony set out in the bill is in question and answer form and is substantially the same as brought up in the statement of facts. It does not purport to be all of the testimony given by the witness while on the stand. It would not have been proper had the witness in person taken the stand to permit him to recite all his evidence. He could only give his testimony on the point inquired about as given by him while testifying. The objection urged in the court does not appear to have been that a court stenographer could not give the evidence or that only the witness could reproduce the evidence. The objection was to the reading or reproducing any evidence whatever. The objection was to the reading the testimony unless all the testimony was read to the jury. Clearly, under the statute the jury had the right to have such testimony reproduced upon request upon a specified point, and if the witness was recalled he must be directed to detail his testimony on the particular point of disagreement, and no other, and as nearly as he can in the language used in his examination. Rev. St. art. 1963; Campbell v. State, 42 Tex. 591. There can be no re-examination of the witnesses. In the case cited the court said:

"It may be insisted with much force that this article of the Code of Procedure is merely directory, and that the failure of the court to observe it is not a sufficient ground for the reversal of the judgment We certainly are not prepared to hold that every departure from the strict letter of this article will require a reversal of the judgment"

The object of the statute is not to elicit further testimony, but to reproduce the exact testimony given by the witness on the stand. The statute is directory, since it only establishes a rule of procedure. A party complaining of its infraction in order to obtain a reversal by reason of the disregard of the rule must show he has been injured...