Bagley v. Brack

• Decision Date: 29 January 1913
• Citation: 154 S.W. 247
• Parties: BAGLEY v. BRACK et al.
• Court: Texas Court of Appeals

154 S.W. 247

BAGLEY v. BRACK et al.

Court of Civil Appeals of Texas. San Antonio.

January 29, 1913.

Rehearing Denied February 26, 1913.

Appeal from Bexar County Court for Civil Cases; Hon. G. W. Huntress, Judge.

Action by A. A. Brack against N. R. Bagley and another. From the judgment Bagley appeals. Reversed and remanded.

O. M. Fitzhugh, of San Antonio, for appellant. J. I. Kercheville, J. F. Carl, and McFarland & Lewright, all of San Antonio, for appellees.

TALIAFERRO, J.

A. A. Brack, appellee, sued N. R. Bagley, appellant, and P. A. Vance, in the county court of Bexar county, as partners, for $250, the value of a colt. Appellee alleged as his cause of action that: "On July 17, 1908, he placed with defendant for pasturage, from month to month, one black mare colt, of the reasonable market value of $250, agreeing to pay to defendants for pasturage and safe-keeping of said colt the sum of $1.50 per month for each and every month during which said colt might remain in the care and custody of defendants, and defendants agreed to pasture and care for said colt during such time as plaintiff might pay the aforesaid sum per month, and return said colt to plaintiff upon demand being made therefor." He further alleged that he had paid the pasturage as it became due, and that about May 15, 1909, he demanded of appellants the return of the colt, but that appellants failed and refused to return the same or account for its value. Each defendant pleaded the general denial; each denied that he had agreed to return the colt to appellee, and each claimed to have been discharged from primary liability by contract with the other, and each asks for judgment over against the other. Appellant Bagley also by special plea alleged that the colt died while in said pasture, and that its death was not caused by the negligence or carelessness of him or his servants, that he did not guarantee the safe return of said colt, and that the same was placed in the pasture, if at all, without his knowledge or consent. Vance specially pleaded that the partnership between him and Bagley had been dissolved on January 25, 1909, and that said Bagley was from that date solely liable for stock in said pasture. The case was tried without a jury, and the court rendered judgment for Brack against Bagley and Vance for $250, and interest from May 15, 1909, and in favor of Vance over against Bagley for a like amount. Bagley perfected this appeal, and, as his first assignment of error, says the court erred in rendering judgment in favor of appellee against appellant, because suit was based upon an alleged express contract of the appellant to return appellee's colt, which allegations of express agreement the evidence wholly failed to support; that this fact created a fatal variance between the allegations in the petition and the proof, and defeated appellee's right to recover.

The first proposition under this assignment is that in a suit on a contract plaintiff cannot recover when the evidence does not sustain the exact contract alleged in the pleadings. The proposition states an axiom of the law. Mason v. Kleberg, 4 Tex. 86; McGreal v. Wilson, 9 Tex. 427; Gammage v. Alexander, 14 Tex. 418; W. U. Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Nunn v. Townes, 23 S. W. 1117; Battaglia v. Thomas, 5 Tex. Civ. App. 563, 23 S. W. 1118; Orynski v. Menger, 15 Tex. Civ. App. 448, 39 S. W. 388. The question is, Does the petition in this case declare solely upon an express contract? We do not think the language can be construed in any other manner. In bailments the law implies a contract on the part of the bailee to return the identical property. Cyc. vol. 5, p. 184, and cases there cited. He is, however, bound to the exercise of only ordinary care in preserving and protecting the same while in his custody. When the property is lost and the bailor seeks to recover its value, he need only allege and prove its delivery to bailee and the bailee's failure or refusal to return it. The burden then devolves upon the bailee to defend himself from liability by showing that the property was not lost by reason of his negligence. But the bailor need not rely upon the legal presumptions if he has made a special contract with the bailee. An express agreement to safely keep and return the specific property would be a virtual contract of insurance, and...