Blalack v. Johnson

• Decision Date: 06 September 1956
• Docket Number: No. 6898,6898
• Citation: 293 S.W.2d 811
• Parties: Joe BLALACK, Appellant, v. Harry L. JOHNSON, Appellee.
• Court: Texas Court of Appeals

Page 811

293 S.W.2d 811

Joe BLALACK, Appellant, v. Harry L. JOHNSON, Appellee.

No. 6898.

Court of Civil Appeals of Texas, Texarkana.

Sept. 6, 1956.

Hurst & Burke, Longview, for appellant.

Smith & Smith, Tyler, for appellee.

FANNING, Justice.

Harry L. Johnson, a licensed land surveyor, sued Joe Blalack to recover the value of services rendered by him in making certain surveys in Harrison County, Texas, preparing filed notes, and platting the same, which services and work of Johnson were used by Blalack in forming a pooled gas unit in Harrison County, Texas. (The suit was originally filed in Harrison County, Texas. On defendant's plea of privilege the cause was transferred to Gregg County, Texas.)

Defendant's motion for instructed verdict was overruled.

Six special issues were submitted to the jury. The issues and the jury's answers thereto are as follows:

'Special Issue No. 1:

'Do you find from a preponderance of the evidence that Harry L. Honson made a survey of lands in the Yarborough and Arnold Surveys in Harrison County, Texas, and incorporated the same in a proration plat of the Bartlett-Bailey 576 acre pooled unit?

'Answer yes or no.

'Answer: Yes.

'Special Issue No. 2:

'Do you find from a preponderance of the evidence that Joe Blalack used to his benefit the survey and plat work rendered by Harry L. Johnson in making a survey and proration plat for the Bartlett-Bailey 576 acre pooled unit in South Hallsville Fieled, Harrison County, Texas?

'Answer yes or no.

'Answer: Yes.

'Special Issue No. 3:

'What sum of money, if any, do you find from a preponderance of the evidence to be a reasonable value of such services and work performed by plaintiff, Harry L. Johnson, in the survey and preparation of the plat and work covered by the preceding question, to the defendant, Joe Blalack's benefit, if any you have so found?

'Answer in dollars and cents, if any.

'Answer: $1264.00.

'Special Issue No. 4:

'Do you find from a preponderance of the evidence that Joe Blalack knew that Harry L. Johnson performed a survey of lands in the Yarborough and Arnold Surveys in Harrison County, Texas, expecting to be paid compensation therefor by the said Joe Blalack?

'Answer yes or no.

'Answer: Yes.

'Special Issue No. 5:

'Do you find from a preponderance of the evidence that a period of two years has elapsed from October 5, 1953, and the date of the filing of the Plaintiff's First Amended Original Petition?

'Answer yes or no.

'Answer: Yes.

'Special Issue No. 6:

'What do you find from a preponderance of the evidence to be a reasonable attorney's fee for the services of the attorneys for plaintiff for prosecuting this cause, if any?

'Answer in dollars and cents, if any.

'Answer: $350.00.'

Defendant's motion for judgment non obstante veredicto was overruled. The trial court entered judgment for plaintiff (in the amounts found) on the verdict of the jury and 'on such additional considerations and findings as were authorized by law, having been had and made' as stated in the judgment of the trial court.

Defendant Blalack's motion for new trial was overruled and he has appealed.

Appellant's first point reads as follows: 'The trial court erred in rendering its judgment dated Jan. 20, 1956.' This point is rather general. However, in his statement under this point appellant states that the verdict of the jury was filed December 13, 1955, the term of court ended December 31, 1955, the judgment was rendered January 20, 1956, that there was no extension of the term to dispose of the cause, and appellant apparently takes the position that the judgment of the trial court was void by reason thereof. We think this contention is not well taken. Under art. 199, subd. 124, V.A.C.S., the District Courts of Gregg County, Texas have continuous terms, and the term of the 124th District Court, at which this case was tried, began of the 1st Monday in November, 1955, and continued until the next succeeding term, which began on the 1st Monday in January, 1956. Subdivision (j) of Rule 330, Texas Rules of Civil Procedure, is applicable to Gregg County, Texas. This court has held that under this rule a District Court with continuous terms could render judgment at the next term succeeding that at which the case was tried without the necessity of extending the term. See Pelham v. Sanders, Tex.Civ.App., 290 S.W.2d 684, and authorities cited therein. Appellant's first point is respectfully overruled.

Appellant's points 2 and 6 read as follows:

'Point 2

'The Trial Court erred in not sustaining Defendant's Motion for Instructed Verdict at the close of Plaintiff's testimony. (Germane to Assignment of Error No. 2)

'Point No. 6

'The Trial Court erred in rendering judgment for Plaintiff upon quantum meruit. (Germane to Assignment of Error No. 17).'

Under his statement and argument under these two points (among other things) appellant takes the position that plaintiff in his original petition filed January 28, 1953, filed a suit on the contract (without an additional count on quantum meruit), that the quantum meruit count filed in plaintiff's first amended petition on December 6, 1955, came too late and was barred by the twoyear statute of limitations.

Article 5539b, V.A.C.S., reads as follows:

'Wherener any pleading is filed by any party to a suit embracing any cause of action, cross-action, counterclaim,

'Whenever any pleading is filed by such pleading such cause of action, cross-action, counterclaim, or defense is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction and occurrence. Provided, however, when any such amendment or supplement is filed, if any new or different facts are alleged, upon application of the opposite party, the court may postpone or continue the case as justice may require. Acts 1931, 42nd Leg., p. 194, ch. 115, § 1.'

In Theriot v. Smith, Tex.Civ.App., 263 S.W.2d 181, 183, w/dis., where the defendant claimed that plaintiff's plea of estoppel filed more than two years since the acts causing the estoppel occurred was barred, the court held as follows:

'Appellee contends that since estoppel was first raised by Appellant in his 2nd Amended Petition, at which time more than two years had elapsed since the time of the purported promise, that the claim was barred by the two year Statute of Limitations, Vernon's Ann.Civ.St. art. 5526. This contention was overruled in view of Article 5539b, Tex.Civ.Stats. Under this statute it has been repeatedly held that an amendment of pleading setting up additional grounds for liability, but upon the same debt and between the same parties, does not make a different transaction so as to prevent tolling of limitations. An excellent disussion of this question is made by Justice Hale in O'Quinn v. Scott, Tex.Civ.App., 251 S.W.2d 168, writ of error refused. See also: Thompson v. Van Howeling, Tex.Civ.App., 49 S.W.2d 961; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16; Moore v. City of Beaumont, Tex.Civ.App., 195 S.W.2d 968; and 146 Tex. 46, 202 S.W.2d 448.'

The plaintiff in his amended pleading in this cause sued the same defendant for the same debt that he sued for in his original petition; the only difference in his amended petition was that he not only sued on the contract alleged in his original petition but that he added an additional pleading contending that he was also entitled to said debt on a quantum meruit basis. Under the authorities cited above it is our opinion that the quantum meruit count in plaintiff's first amended petition did not involve a different transaction from plaintiff's original cause of action for debt and that same was not barred by the statute of limitations. Appellant's contentions in this respect, as well as his other contentions under Points 2 and 6, we think are not well taken. Appellant's Points 2 and 6 are respectfully overruled.

Appellant's third point reads as follows:

'Point 3

'The Trial Court erred in not disregarding Findings to Special Issues 1, 2 and 4, and in rendering judgment based thereon. (Germane to Assignments of Error No. 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.)'

We are of the view that the above point is multifarious and not in accordance with the briefing rules. Sheffield v. Lewis, Tex.Civ.App., 287 S.W.2d 531, 537; Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863; Carnes v. Kay, Tex.Civ.App., 210 S.W.2d 882. It is our further view that a full consideration of the point and the various contentions made thereunder will reveal that same are not well taken, as hereinafter stated.

As we understand appellant's contentions under his third point he apparently takes the position (among other contentions) that there was 'no evidence' to support the findings of the jury in response to special issues Nos. 1, 2 and 4.

Some of the pertinent facts relative to this cause are as follows:

N. L. Webster, an official of Delta Drilling Company, testified that in 1953 J. F. Wright had a farm-out agreement with Delta concerning certain lands in Harrison County, Texas, and that Wright requested Delta to approve the assignment of his rights under such farm-out agreement to Joe Blalack. The written farm-out agreement, which is found in the record, provided among other things that Delta was the owner of certain oil, gas and mineral interests described therein; that Wright had requested a farm-out with permission to utilize a dry hole theretofore drilled on the B. P. Bailey lease; that upon Wright's acceptance of the agreement and deposit of a cashier's check in the sum of $5,000 as a guarantee that Wright would perform his obligations and furnish copies of the application to the Railroad Commission of Texas for a permit to conduct drilling, deepening and reworking operations, together...