Comer v. Powell

• Decision Date: 25 October 1916
• Docket Number: (No. 1042.)
• Citation: 189 S.W. 88
• Parties: COMER v. POWELL et al.
• Court: Texas Court of Appeals

189 S.W. 88

COMER v. POWELL et al.

(No. 1042.)

Court of Civil Appeals of Texas. Amarillo.

October 25, 1916.

Appeal from Roberts County Court; J. E. Kinney, Judge.

Action by G. N. Powell and others against C. R. Comer. From a judgment, defendant appeals. Reversed, and in part rendered and in part remanded.

Baker & Willis, of Canadian, and Troy Smith, of Tyler, for appellant. Coffee & Holmes, of Miami, and M. J. R. Jackson, of Amarillo, for appellees.

HALL, J.

Appellee Powell, joined by his two sons, as plaintiffs, sued appellant Comer, alleging that on or about September 1, 1915, Powell and his sons were the owners of certain wheat in ricks in the field, which had been harvested from 325 acres of land; that they sold the wheat to Comer at the estimated and agreed amount of 4,350 bushels, as follows: That after they had examined the wheat together, Comer made an offer to purchase the same, and to give plaintiffs therefor 4,350 bushels thrashed and delivered in plaintiff's wagons on the premises. That all over and above 4,350 bushels which might be thrashed from the wheat as it then stood was to belong to Comer, and if the ricks did not thrash out the 4,350 bushels, then Comer should make up the difference to plaintiffs. Plaintiffs accepted said offer and Comer thrashed and delivered from said ricks 3,893½ bushels, but refused to deliver a sufficient amount to make 4,350 bushels. That the wheat was worth 95 cents per bushel, and judgment was asked for the value of the difference in bushels between 3,893½ and 4,350. A writ of attachment was also sued out and levied upon a separator and engine, belonging to defendant Comer. Comer answered that the contract lacked consideration; that it was not based on any profit or benefit that could have accrued to defendant, nor any loss or detriment to plaintiffs, but was based on the mere chance of gain or loss to the defendant, according to the happening of an uncertain future event, namely, the amount of the yield of the wheat in thrashing; that it was a wagering contract, in that it was based on the happening of the uncertain event as to whether the wheat then in ricks would thrash out more or less than 4,350 bushels; that there were in reality only 3,893½ bushels which could be thrashed, and that the contract was therefore physically incapable of performance; that the contract was void for want of mutuality; that it had been reduced to writing, and contained a stipulation that appellant Comer should thrash appellees' wheat, and should receive therefor all above 4,350 bushels; that the contract was induced by fraudulent representations on the part of plaintiff, leading defendant to believe that there were more than 4,350 bushels in the field. Defendant reconvened for damages in the sum of $311, being the value of his services in thrashing the wheat, and sued also for damages for the wrongful and malicious levy of the attachment writ upon his thrashing outfit. A trial before a jury resulted in a verdict and judgment against defendant Comer for $201.85.

The first proposition urged is that the contract as made, being a wager, is void because against public policy. Appellee Powell testified, in substance: That Comer came to his farm about the last day of August to secure his crop to thrash; that he told Comer he had been talking to other thrashers, but had not closed a deal with them. In the conversation Comer asked him what he thought his wheat would make. The witness told him it was not as good as some other wheat in the county, from the simple fact that hail had damaged it. Comer then said, "You will make 5,000 or 6,000 bushels," to which witness replied that he did not think so. Comer said he was thrashing at Mr. Eller's, whose wheat was turning out better than everybody expected, and that witness' wheat would turn out better, and then asked witness what he would take for his wheat crop, saying, "Let me thrash it at my expense and turn it over." Witness replied, "4,500 bushels." Comer then proposed to ride down and look at the wheat. That they looked at three ricks on the north side of a turnrow running through the field, then crossed over to the south side and looked over the ricks there. Witness told Comer that there were either 68, 70, or 72 ricks; that he did not remember exactly the number; that Comer examined the wheat and tested it, and finally said he would give witness 4,250 bushels for the crop, which witness refused to take. Then Comer said, "I will give you 4,300," which witness also refused. Finally they agreed to split the difference and made the amount 4,350 bushels. After examining the wheat further witness said:

"If we deal I do not want any quibbling. We make the deal on 68 ricks, more or less, you may thrash these two fields and 38 acres volunteer wheat, and I will split with you and take 4,350 bushels, which Comer agreed to do." "After we went back to the house I told one of my boys the deal we had made, as he had an interest in the crop, and the boy said, `And in the event there is not 4,350 bushels, what are you to do about it?' Comer said `I am to make 4,350 bushels good'; that he would make the shortage good."

While plaintiff alleged that the transaction was a sale, it is clear from the evidence that such allegation is not true. Comer did not purchase from Powell, nor did the latter sell Comer any wheat. It was simply a transaction based upon the belief on the part of Comer that the ricks of wheat owned by Powell contained considerably more than 4,350 bushels, and his proposition was made with no intention whatever of becoming the owner of any of the 4,350 bushels, but with the hope of gaining a liberal excess over that amount. The question squarely presented is, Is the transaction a wagering contract? Briefly stated, Comer undertakes to thrash 4,350 bushels of wheat for Powell gratis, and guarantees that said ricks contain that amount, in consideration of which he is to have any excess which the ricks may contain. On the other hand, Powell is guaranteed 4,350 bushels of wheat thrashed without expense, but loses any amount in excess thereof which said ricks may possibly contain. Referring to Words and Phrases, vol. 8, p. 7365 et seq., we quote the following definitions of the terms "Wager" and "Wagering Contract":

"Bouvier defines a `wager' as follows: Wager, a bet; a contract by which two persons or more agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening or not happening of an uncertain event (citing authorities). This definition implies that to every wager there must be two or more contracting parties having mutual or reciprocal rights in respect to the money or other things that are wagered, and usually called stakes of the bet or wager, and that each of the parties shall jeopardize something and have the chance to make something, or to recover the stakes or thing, bet, or wager upon the determining of the contingent or uncertain event in his favor. Jordan v. Kent, 44 How. Prac. (N. Y.) 206; Treacy v. Chinn, 79 Mo. App. 648."

"A wager is defined as a contract in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest, except that arising from the possibility of such gain or loss. Fareira v. Gabell, 89 Pa. 89; Kitchen v. Loudenback, 48 Ohio St. 177, 26 N. E. 979, 29 Am. St. Rep. 540."

"A bet or wager is ordinarily an agreement between two or more that a sum of money or some valuable thing in contributing which all agree to take part shall become the property of one or some of them on the happening in the future of an event at the present uncertain, or upon the ascertainment of a fact in dispute. This definition, though not exhaustive, sufficiently expresses what is meant by a wager. The essential elements of an ordinary waging contract are: (1) An agreement by one party to pay another a sum of money or give something of value if a certain event happens; (2) a...