Branch v. Dever

• Decision Date: 01 January 1857
• Citation: 18 Tex. 611
• Parties: E. T. BRANCH AND ANOTHER v. THOMAS DEVER.
• Court: Texas Supreme Court

18 Tex. 611

E. T. BRANCH AND ANOTHER

v.THOMAS DEVER.

Supreme Court of Texas.

1857.

Suit to recover pay for services in driving and selling a drove of beeves, for defendants; defense, that plaintiff had not paid over all the money received for the cattle, and that the plaintiff had not discharged his duty in managing and disposing of said beeves, and had wilfully violated his instructions and was entitled to no wages; verdict and judgment for plaintiff, and judgment affirmed on the ground that the verdict was not without evidence to support it.

Appeal from Liberty. Tried below before the Hon. Peter W. Gray.

Suit by appellee against appellants, Branch & Waring, commenced in a justice's court, October 4th, 1854, to recover pay for driving and selling a drove of beeves, for defendants, thirty-three days at $3 per day, less credit of $10, $89. Defense that the plaintiff had not discharged his duty in managing and disposing of said beeves, and had wilfully violated his instructions. Judgment in justice's court for plaintiff for $89. Certiorari by defendants.

The proof was that the defendants employed plaintiff to drive a drove of beeves from Liberty county, Texas, into Louisiana, and sell them; that they instructed him to let them go whenever he could get cost and expenses for them; and being asked by plaintiff what he should do if he could not get cost and expenses for them, they told him to take the cattle and do the best he could with them, as if they were his own; but they told him not to take them to New Orleans, giving as a reason therefore, that they had lost money on a drove which they had recently sold there; they also told plaintiff that John Wrigley, who was about starting with a drove of beeves, had tried to get from them all of their large beeves to put with his drove, and that they should take his small beeves and put them with their small ones, and drive the beeves thus, the large ones in one drove and the small ones in another; but that they had refused to do it, and did not want Wrigley to have their large beeves. It was in proof that the plaintiff had no offer for the beeves until Wrigley overtook him; that beeves were low; and that when Wrigley overtook plaintiff, they put all the large beeves in one drove, which Wrigley took to New Orleans and sold at a net average, from that date, of $12.30 per head, and the small beeves in another drove, which plaintiff took down on the coast and sold for a net average, from that date, of $9.68 per head; that the beeves, in both cases, were sold in the aggregate, and settlement between Wrigley and plaintiff was made upon the basis that Wrigley's and defendant's beeves were of equal value per head. The place where the two droves were thus divided, was about one hundred and forty miles from Liberty, this side of the Monteau, in Louisiana; and one of the hands who helped to drive the cattle, testified that he had not previously heard of any offer being made to them; Wrigley testified that he repeated to plaintiff what had passed between him and defendants; that he thought it was the best for defendants; plaintiff also testified that he thought he was doing the best for defendants; that he could not...