Carter v. Irvine

• Decision Date: 22 November 1934
• Docket Number: No. 1534.,1534.
• Citation: 77 S.W.2d 247
• Parties: CARTER v. IRVINE.
• Court: Texas Court of Appeals

77 S.W.2d 247

CARTER v. IRVINE.

No. 1534.

Court of Civil Appeals of Texas. Waco.

November 22, 1934.

Rehearing Denied December 20, 1934.

Error from District Court, Navarro County; W. W. Harris, Special Judge.

Action by H. A. Carter against B. F. Irvine. To review an adverse judgment, plaintiff brings error.

Reversed and remanded.

Touchstone, Wight, Gormley & Price and Walter Van Nort, all of Dallas, for plaintiff in error.

Lovett & Lovett, of Corsicana, for defendant in error.

GALLAGHER, Chief Justice.

This suit was instituted by plaintiff in error, H. A. Carter, in the district court of Navarro county against defendant in error, B. F. Irvine, to recover the sum of $3,440.85 alleged to be due on a contract of employment. The parties will be designated as in the trial court. Plaintiff alleged that he was a public accountant and income tax consultant, engaged in making income tax returns for others and representing others in income tax matters before the United States Treasury Department and its divisions and the Board of Tax Appeals. He further alleged that defendant, in November, 1927, employed him to examine the books, records, and original income tax returns of defendant and his children for the years 1923 and 1924; that by the terms of his employment he was to take such action as was necessary to oppose a proposed assessment of additional income taxes and interest thereon for said years, to secure an adjustment and reduction of the income tax liability, and to secure a refund of part of the income taxes paid for said years; that he immediately began the discharge of the duties of such employment; that while so engaged a written contract was executed by plaintiff and himself, in which the consideration for his services was fixed at 20 per cent. of such reduction in taxes as plaintiff might secure; and that he did secure a net reduction of tax liability in the sum of $17,203.25.

Defendant admitted the existence of the contract declared upon, but denied liability thereon on the ground that plaintiff had wholly failed and neglected to perform said contract but had breached the same, and that such reduction of tax liability as was secured was the direct result of the services of an attorney employed by defendant. He further alleged that said attorney appeared at a hearing before the proper representatives of the Internal Revenue Department at Dallas and that the reduction of liability resulted solely from his efforts; that plaintiff did not appear at such hearing; and that such reduction of liability did not result from anything done by him. Defendant further alleged that if plaintiff did perform any services in pursuance of his employment, that the same were trivial and ineffective and the value of the same did not exceed $50; that plaintiff, having failed to discharge the duties of his employment, could in no event recover more than the actual value of the services rendered by him thereunder.

The case was submitted to a jury on special issues, which issues with the answers thereto were as follows, to wit:

"(1) Do you find from a preponderance of the evidence in this case that the plaintiff, H. A. Carter, or persons employed by him, performed the services, if any, under the contract of the date of December 14, 1927, which brought about or caused the reduction of $17,204.25 tax liability of B. F. Irvine, R. E. Irvine, C. F. Irvine and Alice Irvine?

"Answer: No.

"(2) If you have answered question No. 1 `No', then do you find from a preponderance of the evidence that H. A. Carter was prevented from performing his contract entered into with B. F. Irvine on December 14, 1927, by the acts or omissions if any, of the defendant, B. F. Irvine, or any one acting as his agent or by his authority?

"Answer: No."

The court rendered judgment that the plaintiff take nothing by his suit.

Opinion.

Plaintiff contends that the court erred in permitting the defendant to read in evidence on the trial of this case a transcript of the testimony given by one Woodford, a witness at a former trial of this case. He was introduced as a witness at such trial by defendant and was cross-examined by attorneys representing the plaintiff. He was an internal revenue agent of the federal government. He resided in Dallas and was connected with the internal revenue office there located. He was the agent who personally handled said tax adjustment with defendant and his children. His testimony was material to the controversy between the parties. Plaintiff's objection to the introduction of the transcript of the testimony of said witness was that the same was hearsay and that no predicate for the introduction of the same had been laid.

The substance of the rule with reference to the introduction of the former testimony of an absent witness is that the mere fact that testimony has been given in the course of a former proceeding between the parties to a case on trial is no ground for admitting it in evidence, but that such testimony may be introduced if the witness has since died, become insane or sick and hence unable to testify, if he cannot be found after diligent search, is out of the jurisdiction, or has been kept away from the trial by the opposing party. 10 R. C. L., p. 966; 22 C. J., p. 431, § 517; 3 Jones Commentaries on Evidence, p. 2167 et seq., § 1183. So in this state such testimony is admissible where diligent but futile search has been made to find the absent witness, or where it is shown that he is at the time out of the jurisdiction of the court. Boyd v. St. L. S. W. Ry. Co., 101 Tex. 411, 108 S. W. 813; St. Louis S. W. Ry. Co. v. Boyd (Tex. Civ. App.) 119 S. W. 1154, par. 2 (writ refused); Trinity & B. V. Ry. Co. v. Geary (Tex. Civ. App.) 194 S. W. 458, 460, par. 2 (writ refused); Kurz v. Soliz (Tex. Civ. App.) 231 S. W. 424,...