Cochran v. Taylor

• Decision Date: 18 January 1919
• Docket Number: (No. 8053.)
• Citation: 209 S.W. 253
• Parties: COCHRAN v. TAYLOR.
• Court: Texas Court of Appeals

209 S.W. 253

COCHRAN v. TAYLOR.

(No. 8053.)

Court of Civil Appeals of Texas. Dallas.

January 18, 1919.

Rehearing Denied February 22, 1919.

Appeal from Hill County Court; R. T. Burns, Judge.

Action by W. A. Taylor against B. B. Cochran begun in justice court and appealed by defendant to the county court. From a judgment there for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur; otherwise reversed and remanded.

Dupree & Crenshaw, of Hillsboro, for appellant.

J. E. Clarke, of Hillsboro, for appellee.

TALBOT, J.

The appellee sued the appellant in the justice court of Hill county to recover the sum of $181.65 alleged to be due as the balance on a contract whereby appellant agreed to pay appellee, for cutting and baling hay grown upon appellant's farm, the sum of $3 per ton for the first cutting, and $3.25 per ton for the second cutting. The appellee also sued to recover specified amounts, aggregating $51, for services performed in storing, hauling, and shipping said hay at the special instance and request of appellant. Appellee filed at the institution of the suit an itemized account purporting to show that appellee had cut and baled of the first cutting 3,789 bales, and of the second cutting 1,745, of an average weight of 62 pounds per bale. The account so filed showed items for services performed in storing, hauling, and shipping hay of $5, $36, and $10, the total amount due under the contract being $602.70. The account also showed items of credit, aggregating $421.05, leaving a balance of $181.65, the amount appellee sought to recover. The appellee, in giving the nature of his demand in the citation issued by the justice of the peace, after stating the amount to be $181.65 due upon an account for cutting and baling, storing in barn, and shipping same, charged that he entered into a contract with the appellant for baling and cutting hay whereby appellant agreed to pay appellee $3 per ton for the first cutting, and $3.25 per ton for the second cutting; that each and all of the items set out in said account are true and correct, and that appellee performed the labor and services therein stated at the special instance and request of the appellant, and upon the date and for the amounts therein set forth; and, further, that all of the charges for services rendered as set out in said citation are reasonable compensation for such services. The appellant answered by a general demurrer and general denial. A trial in the justice court resulted in a judgment in favor of appellee for $181.65, and appellant appealed to the county court. The pleadings in the county court were the same as in the justice court, and a jury trial in the county court, as in the justice court, resulted in a verdict and judgment in favor of appellee for the sum of $181.65. Appellant's motion for a few trial having been overruled in the county court, he prosecuted this appeal.

The first assignment of error complains of the court's refusal to give, at the conclusion of the evidence, a special charge requested by appellant directing the jury to return a verdict in his favor. The proposition urged is that the amount sued for being based upon the number of tons of hay baled for appellant by appellee under the alleged contract, and upon the reasonable value of the services alleged by him to have been performed, the burden was upon appellee to establish by a preponderance of the evidence the number of tons of hay baled, and that the services alleged to have been performed by appellee were reasonably worth the sums claimed by him therefor, and, the evidence failing to show the number of tons baled or the reasonable value of the services rendered, the court should have given the requested peremptory charge.

We think the requested charge was correctly refused. No witness testified to the number of tons of hay cut and baled, but the evidence does show the number of bales cut and baled, and from this the number of tons may be arrived at by a mere mathematical calculation. The evidence is also sufficient to show that the average weight of the bales of hay designated as the first cutting was 62 pounds per bale, and that appellant, by the terms of the contract entered into between him and appellee, agreed to pay for the cutting and baling of the first cutting $3 per ton. It is also sufficient to show that appellant contracted to pay appellee the $5 item of the account filed, and charged for "hauling hay into the barn." The testimony of appellee is to the effect that in his first cutting he cut and baled 3,789 bales of hay under the contract alleged, and that the average weight of these bales was 62 pounds per bale. By the statement of facts he is made to say that the average weight of said bales was "62 tons and a fraction," but evidently this is a clerical error of the official stenographer or person who prepared the statement of facts. It may be said that it is a matter of common knowledge that no ordinary bale of hay, such as the witness referred to, would weigh 62 tons, and that what he really stated was that the average weight of the bales was 62 pounds. Besides, at another place in his testimony he referred to the weight of the bales of hay as being 62 pounds per bale. As to the $5 item charged for hauling hay into the barn, he testified, in effect, that this service was performed at the request of appellant; that by the terms of their contract he was to fill the old barn and granary and the old house on the place; that appellant was to pay half the expenses of putting the hay into these houses; that the labor cost $10, and that he charged appellant $5. Appellee sued to recover a balance alleged to be due him for cutting and baling the hay of the first cutting, which, together with the item of $5 charged for hauling hay into the barn, he says amounts to $67.37. His suit to recover the balance is not based alone upon allegations of the performance of the services rendered and the reasonable value thereof, but in the citation issued in the justice court, which is admitted to be a part at least of his pleadings in the county court, he alleged, in effect, among other things, that he performed the labor and services stated in the account filed at the request of appellant upon the agreed compensation of $3 per ton for the first cutting of hay. The additional allegations, "that all of the charges for services rendered as set out in said account are reasonable compensation for such service," do not destroy the preceding allegations, which, in effect, declare that said service was rendered upon the express promise of appellant to pay $3 per ton for the first cutting. The pleadings and evidence were sufficient to warrant a recovery for the balance due appellee for the first cutting and baling of hay, and the court would have erred to the prejudice of appellant had the peremptory instruction requested by appellant been given. We have discovered no direct testimony of the weight of the bales of hay constituting the second cutting, but appellee testified, in substance, that after he had cut and baled the hay, and while in Hillsboro on one occasion, he "ran up the account" with appellant; that he figured the amount appellant had paid and the balance he owed, and stated to appellant the number of bales, the number of pounds, the balance due for the second cutting, and that appellant did not refuse to pay him on the ground that he did not owe it, but that, on the contrary, appellant paid him some more on the account. There is also testimony to the effect that appellant, before casting up the account as just stated, had agreed or contracted to sell to Gaines B. Turner the farm upon which the hay cut and baled by appellee was grown, together with the hay; that later Turner refused to take the farm and hay, and a controversy arose between him and appellant in regard thereto; that during the existence of this controversy appellant said to appellee that if he (appellant) took the place back he would pay appellee for the cutting and baling of the hay.

There is testimony to the effect that entries made in a book kept by appellee show the average weight of all the bales of hay, and by agreement of the parties this book was sent to this court for its consideration of said entries as evidence of said weight; but this cannot be done. This court can consider only the evidence incorporated into the statement of facts in determining the facts of the case. Lingo Lumber Co. v. Garvin, 181 S. W. 561.

But whether the testimony was or was not sufficient to show the weight of the bales of hay of the second cutting, which was necessary in order to determine the number of tons of bay cut and baled by appellee of said...