Benton v. Kuykendall

• Decision Date: 15 March 1913
• Citation: Benton v. Kuykendall, 160 S.W. 438 (Tex. App. 1913)
• Parties: BENTON v. KUYKENDALL et ux.
• Court: Texas Court of Appeals

160 S.W. 438

BENTON v. KUYKENDALL et ux.

Court of Civil Appeals of Texas. Dallas.

March 15, 1913.

Rehearing Denied November 15, 1913.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by J. W. Kuykendall and wife against C. A. Benton. Judgment for plaintiffs, and defendant appeals. Affirmed.

Richard Mays, of Corsicana, for appellant. Simkins & Simkins and W. J. Weaver, all of Corsicana, for appellees.

TALBOT, J. J.

W. Kuykendall instituted this suit on December 13, 1910. On March 25, 1912, his wife, Mrs. Olivia Kuykendall, became a party plaintiff, adopting the allegations of her husband's first amended original petition, upon which the case was tried. It was alleged, in substance, that on May 25, 1910, appellee Kuykendall made a written contract with the appellant, C. A. Benton, by which appellees sold to him 300 cords of wood, and that Benton paid them therefor two notes for $300 each, payable in lumber, made by J. S. Brasher, and the further sum of $300 in money; that afterwards, on July 6, 1910, said appellee made another written contract with appellant, Benton, by which appellees sold to him 1,500 cords of wood in the tree, upon land owned by appellees, and for which appellant paid and delivered to them three promissory notes, payable in lumber, executed by the said J. S. Brasher, one for $395.21, and the other two for $300 each, aggregating the sum of $995.21. It was further alleged that the first contract was executed by the parties, appellees having delivered 300 cords of wood to appellant, and received the two notes, together with $300 in money; that under the second contract its execution was being proceeded with, at, and prior to the filing of the suit, and that appellant had cut and hauled from the land 350 cords of wood of the reasonable value of 60 cents per cord; that there is now standing on said land 1,150 cords of uncut wood, which appellant bought, and which was held subject to his order and disposition, and that it was also worth 60 cents a cord; that appellant, at the time of the making said contracts, represented to appellee Kuykendall that the maker of the notes was solvent, that the notes were good, and the lumber would be delivered when called for, upon which appellee relied, and that said representations were not true, and that the appellant knew they were not true, or that same were made by the appellant without any knowledge of the truth, and that the appellant carelessly and recklessly made said statements and representations with a view of inducing appellees to accept said notes; that said notes were of no value, the maker insolvent, and nothing had been collected thereon; and by reason whereof appellees had been damaged in the sum of $600, being the value of 200 cords of wood delivered under the first contract, $210 for the value of wood already cut from the land under the second contract, and that he also have judgment in the further sum of $690 for the uncut wood upon the land, which is now tendered to appellant. Appellee further alleged that he had accepted the notes as payment for the wood he sold appellant on the faith of the representations made to him by appellant as to their worth and solvency, that said representations were false, and that appellees had been thereby injured, and prayed that he recover the value of what wood the appellant had cut and hauled and what wood he had delivered under the contracts. He also alleged that he had tendered the wood which was due appellant under the second contract, and asked for the value of the wood, but did not recover it. He further alleged that he did not know the maker of the notes, nor anything about his solvency, and had no means of finding out same; that no consideration passed to him under the two contracts except the sum of $300 cash for his timber and five worthless notes. He stated that he had accepted the notes for his timber, and he would not have done so had he not relied with confidence upon the word, statement, and representations of the appellant; that the notes were worthless, and that appellant knew it at the time he made the statements, or that he made the statements in a careless and reckless way without knowledge, which statements had injured appellee; that he had performed his part of the contracts; and that he brought this suit by reason of the fraudulent consideration given him, which had been represented by appellant to be a good one. He alleged that the consideration given him, and upon which he had executed the written contracts, had been represented to him by appellant to be a good consideration, and but for which representations he would not have executed the contracts, and that the notes were worthless. He brought suit to recover the value of the timber appellant had used, and for which he never paid because the notes were worthless. From the allegations of appellee's petition, it appears that all of the notes involved in the suit were past due when received by appellee. The original payee was C. E. Bowers. He transferred the notes without recourse to J. F. Yates, who transferred them to appellant without recourse, and appellant in turn transferred them to appellee without recourse; such transfers having been indorsed on the notes. Appellant answered by general demurrer, special exceptions, general denial. He also filed a cross-action, claiming a breach of the contracts on appellee's part, and a denial of his right to enter upon the land and remove the timber bought from appellee, and prayed for damages in the sum of $914.25, etc. On March 26, 1912, appellees filed their second trial amendment, and for the first time tendered a return of the five notes. The case was tried before the court and a jury, and appellee recovered a judgment for $600 for the first 200 cords of wood delivered by him, and the further sum of $168 for 281 cords of wood cut and hauled by the appellant himself, but recovered nothing for the wood which appellant did not cut under the second contract. The judgment further provided that appellant take nothing by his cross-bill. From the judgment rendered, the appellant has appealed.

At the last term of the court we refused to consider appellant's assignments of error, because neither of them showed that the error therein complained of was distinctly set forth in a motion for a new trial in the district court, and did not point out the page of the transcript or particular clause of the motion in which the error was complained of, in accordance with amended rule 24 (142 S. W. xii) and rule 25 (142 S. W. xii) promulgated by the Supreme Court for the government of the Courts of Civil Appeals, and, there being no fundamental error apparent of record, we affirmed the case. Appellant filed a motion for a rehearing in this court in due time, and cites the decision of our Supreme Court in Railway Co. v. Beasley (Sup.) 155 S. W. 183, in support of the contention that we erred in declining to consider his assignments of error.

It is clear to us that the Supreme Court in the Beasley Case holds that, notwithstanding rule 24, as amended in 1912, assignments of error which complain of the giving or refusing of charges, and to other rulings of the trial court which otherwise appear of record, are entitled to consideration, whether a motion for a rehearing including and complaining of such rulings is filed and urged in the trial court or not. It is said, in effect, by the Supreme Court that said rule, in so far as it requires the character of rulings referred to to be set up in a motion for a new trial, is in conflict with articles 2061 and 2062 of the statute and the construction placed upon said articles by that court, and must be interpreted and construed so as to harmonize with said articles and former decisions.

The Supreme Court's construction of amended rules 24 and 25, as shown in the Beasley Case, cannot be regarded, we think, as obiter dictum and not binding on the Courts of Civil Appeals. The holding of the Supreme Court seems to have been called for by the questions certified, and is without equivocation and expressed in emphatic language. However we may believe that the amendments to said rules and the adoption of rule 71a (145 S. W. vii) for the government of the district and county courts were intended to change the rules of practice and procedure established prior thereto, and no matter how firmly we may believe that articles 2061 and 2062, referred to in Railway Co. v. Beasley, merely relate to and dispense with the necessity of taking formal bills of exception to the ruling of the court in giving and refusing or qualifying of instructions, and to rulings and actions of the court which otherwise appear of record, and in no wise limit or abridge the authority of the Supreme Court to require the filing of a motion for a new trial, distinctly specifying all errors sought to be made available on appeal, yet it is our duty to follow the construction of the Supreme Court, and it would be folly and a waste of time to litigants to run counter to it. Therefore our former opinion in this case will be withdrawn, and this opinion substituted therefor.

The first assignment of error complains of the court's refusal to give the following charge requested by appellant: "Should you believe from the evidence that Benton made the representations concerning the value of said notes and the solvency of the maker, as claimed by plaintiff, still the facts show without dispute that the plaintiff and defendant reduced their contract and agreement to writing, as evidenced by the two contracts and the five notes sold by defendant to plaintiff, and the written contract between the parties, so evidenced by the written contracts and indorsement on the notes, control and govern the liability of the parties. Therefore, by the terms of the contract, Benton having stipulated that Kuykendall was to have no recourse on him, in the event the notes were not paid by the maker, the said...