Arndt v. Boyd

• Decision Date: 09 December 1898
• Parties: ARNDT v. BOYD.
• Court: Texas Court of Appeals

48 S.W. 771

ARNDT v. BOYD.

Court of Civil Appeals of Texas.

December 9, 1898.

Appeal from Washington county court; E. C. Curry, Judge.

Action by C. C. Boyd against Julius Arndt. There was a judgment for plaintiff, and defendant appeals. Reversed.

Searcy & Garrett, for appellant. Buchanan & Henderson, for appellee.

WILLIAMS, J.

This was an action by appellee to recover of appellant damages for breach of a contract by which, it was alleged in the petition, appellant, for a valuable consideration, agreed to pasture, and care for, and safely keep in his inclosed field, cattle belonging to appellee. The petition alleged that after the cattle had been put in the inclosure, under the contract, defendant had removed them therefrom into another, where there was no grass or forage, and caused them to be chased from place to place over and about his premises, and off and on his land; that, after having done this, defendant drove the cattle out of said inclosure, and caused them to be driven away from his premises a great distance, and turned loose upon the public commons; that "when said cattle were driven and turned loose by the defendant, his agents and servants," they scattered, etc. These are all of the allegations in which the wrong done by defendant is stated, and only enough of the petition is given to illustrate the points decided. The defendant pleaded a general demurrer and general denial. Plaintiff had verdict and judgment for $150. The evidence showed that an agent of plaintiff applied to defendant for permission to put the cattle in the field, and that defendant agreed that this might be done if plaintiff would fix the fence. This agent testified further: "When I spoke to Arndt about putting the cattle in the field, he said all right, if I fixed the fence; he was responsible, and would look after the cattle when I was away. This was agreed to." There was no evidence that defendant himself put the cattle out of the inclosure, and none that any one chased or drove them after they were turned out. The evidence showed that they got out in some way, and tended to show that the wife of defendant drove or caused them to be driven out.

Plaintiff sought to make defendant responsible for her act by evidence that she acted as agent for her husband. For this purpose, plaintiff asked a witness this question, "Who seemed to run and manage the business on the Arndt place?" to which the witness answered that Mrs. Arndt, wife of defendant, seemed to run and manage the business, in fact "seemed to be boss," according to the bill of exceptions. According to the statement of facts, the question and answer were as follows: Question: "From your dealings with Mr. and Mrs. Arndt, before and at this time, who run the business on the Arndt place?" Answer: "Mrs. Arndt, wife of defendant, run and managed the business, in fact seemed to be boss, and Arndt acquiesced in what she did." The witness did not state any transaction or dealing with either husband or wife when the other was present, nor in fact any with either relating to the wife's agency for the husband. This evidence was objected to, on the ground that it was irrelevant, and was merely the conclusion of the witness. We think it was objectionable on both grounds. The fact sought to be established by the evidence was the wife's authority to act for the husband. Such authority must, in some way, have been conferred by the husband. Of course, it might be proved by circumstances, and implied from his conduct. But, in order to authorize an inference of its existence, it was necessary for the witnesses to state the fact from which it was to be drawn, and leave the court...