Booth v. Cotton

• Decision Date: 01 January 1855
• Citation: 13 Tex. 359
• Parties: JOHN S. BOOTH v. WESLEY D. COTTON AND WIFE.
• Court: Texas Supreme Court

13 Tex. 359

JOHN S. BOOTH

v.WESLEY D. COTTON AND WIFE.

Supreme Court of Texas.

1855.

Appeal from Liberty. This is a suit against husband and wife, for three hundred dollars, alleged to be due for the collecting, keeping, managing and preserving the separate property of the wife.

The petition is in the common form of a count for work and labor, &c., stating the liability of defendants for the services as being rendered at their special instance and request, and that being so liable they promised, &c.,

There were but two witnesses. One of them, Moss, proved that plaintiff had gone from Liberty to Tyler county, on the business of Elizabeth Cotton; that the amount charged was very reasonable; that plaintiff moved said Elizabeth Cotton's property from Tyler to Liberty county; that after the removal of the property from Tyler to Liberty, the defendants removed to and resided in Liberty county.

W. B. Holt, the other witness, stated that plaintiff had gone four or five times from Liberty to Tyler county on business of the said Elizabeth Cotton; that the plaintiff had done business for her by attending to the settlement of her accounts in Tyler, and aiding her to remove her property to Liberty county; that three hundred dollars was a very reasonable charge for the services done by plaintiff. The witness was well acquainted with the business of the said Elizabeth, from the fact that she was in the act of separating from her husband, and was in the habit of consulting with witness, who lived in the neighborhood. The witness thought that the plaintiff ran the risk of being killed by Cotton (the husband) for his agency in removing the property.

The plaintiff having concluded his evidence, the defendants, and each of them, demurred to it as being insufficient to entitle the plaintiff to recover from either the husband or wife jointly or separately. The demurrer was sustained, and judgment being for defendants, plaintiff appealed, and assigns,

1st. That the court erred in overruling plaintiff's motion for a new trial.

2d. In refusing to submit the cause to the jury, when the defendants demurred to the evidence.

3d. In rendering judgment for defendants, when it should have been for plaintiff.

W. C. Abbott, for appellant. I. In order to compel a party to join in a demurrer to evidence, it is necessary for the party demurring to admit all the facts that the testimoney conduces to prove, (2 Stephen's N. P., p. 1792, and authorities there cited; 2 Tidd's Practice, p. 865, and authorities; Pawling et al. v. United States, 2 U. S. Cond. R., 92; Young et al. v. Black, 3 U. S. Cond. R., 23; U. S. Bank v. Smith, 6 Cond., 256; Fowle v. C. C. Alexandria, 6 Cond., 328; Thornton v. Bank of Washington, 3 Peters, 36;Chenoweth et al. v. Haskell et al. 3 Peters, 92.)

II. The reason of the district judge for giving judgment for the defendants, was, that there was no testimony or direct testimony of the consent of the husband to the assumpsit of the wife. By an examination of the statement of facts it will be seen that it was proven that the services were more valuable than the amount charged; that it was for the benefit of the wife's separate property: if these were proven it would certainly conduce to prove the consent of the husband; it would certainly raise a presumption of consent, and would warrant a jury in finding for the plaintiff. In addition, it was also proven that the husband adopted the acts of the plaintiff, availed himself of the value of the plaintiff's labor, from which the law would also raise a presumption of consent, and upon which a jury would be warranted in finding a verdict for plaintiff.

C. L. Cleveland, for appellee. First. There could be no recovery against the husband, because there was no promise express or implied on his part. The facts exclude all idea of his consent to the interference of Booth with the property or business of himself or wife; while on the other hand, it is shown that Booth was regarded by him as a trespasser in so doing.

Secondly. There could be no liability on the part of the wife, because it does not appear from the facts that the services charged for were for the benefit of her separate property. It does not appear that the husband was incapable of managing and controlling her property, or that he was wasting it-- or attempting so to do--or in any manner abusing the trust which the law conferred upon him in regard to the management of her property. To authorize a recovery against the defendants, it was incumbent upon the plaintiff to have shown that a debt was incurred by the wife for the benefit of her separate property; and also that the debt so contracted, or expenses so incurred by the wife, were reasonable and proper. (Hart. Dig., arts. 2423, 2424.)

HEMPHILL, CH. J.

The second ground, viz: the refusal of the court to submit the cause to the jury, when the defendant demurred to evidence, was very properly abandoned in the argument. The right of a party to demur to the evidence offered by the adverse party, can scarcely be considered an open question in this State. ( Vide Turner v. Sayre, 4 Tex. R., 28; Mitchell & Mitchell v. Wright, Id., 283.)

There was no joinder in demurrer by the plaintiff, at least none appears on the transcript. A correct practice requires that there should be joinder in demurrer. To this a party may be compelled where the evidence offered is in writing, for the facts which it proves are certain and cannot be varied; but where the evidence is by parol and of a loose and indeterminate character, and which may be urged with more or less effect to a jury, and especially where the evidence is circumstantial, and is meant to conduce to the proof of facts beyond the circumstances proved, a party is not obliged to join in demurrer and thus withdraw the case from the jury, unless the demurrant will admit every fact and conclusion which the evidence conduces to prove. The whole operation of conducting a demurrer to evidenc, and of directing the admissions which the demurrant shall make, is under the control of the court. (2 H. Black., 187; 11 Wheaton, 320, 321;4 Yeates, 54;2 Sergt. & Rawle, 186; 3 Id., 413-416.

It is said that if a party joins in demurrer, neglecting to insist on these admissions, the court will proceed and draw the same inferences from the evidence, which the jury might have drawn. (12 Wheaton, 383-389;11 Id., 171, 179;3 Johns. Cas., 159, 160;3 Cranch, 219.

Regarding this case, then, as if there had been joinder in demurrer, and every fact as proven which a jury...