Coody v. Shawver

• Decision Date: 08 November 1913
• Parties: COODY v. SHAWVER et al.
• Court: Texas Court of Appeals

161 S.W. 935

COODY v. SHAWVER et al.

Court of Civil Appeals of Texas. Ft. Worth.

November 8, 1913.

Rehearing Denied December 13, 1913.

Appeal from Knox County Court; J. H. Milam, Judge.

Action by G. H. Shawver and another against C. H. Coody. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jas. A. Stephens, of Benjamin, for appellant. D. J. Brookreson, of Benjamin, and Robert Cole, of Crowell, for appellees.

DUNKLIN, J.

G. H. and J. A. Shawver instituted this suit against Henry Coody to recover possession of three mules and one horse, or, in the alternative, the value thereof, also for $250, the value of two mules alleged to have been converted by the defendant; title to all of said stock being claimed by the plaintiffs. Judgment was recovered by plaintiffs, and the defendant has appealed.

The animals in controversy originally belonged to a herd of 37 head of horses and mules purchased at public sale; plaintiff G. H. Shawver furnishing the purchase money therefor, and defendant Coody bidding in the stock and taking and holding possession thereof for quite a long period of time. According to the testimony of plaintiff, G. H. Shawver, he agreed with Coody prior to the purchase that he (Shawver) would furnish the purchase money, and after the purchase Coody and plaintiff J. A. Shawver might each become the owner of a one-third interest in the stock upon payment of one-third of the purchase price, but that Coody had never paid, or offered to pay, such consideration, and had refused to turn over to the plaintiffs the stock in controversy. According to Coody's testimony, prior to the auction sale noted, plaintiff G. H. Shawver had agreed unconditionally that, if he (Coody) would bid in the herd, G. H. Shawver would furnish the purchase money, and that the two plaintiffs and Coody would become partners and own the stock in equal shares, and that J. A. Shawver and Coody should each owe to G. H. Shawver one-third of the purchase price of the stock. The difference in these two versions of the terms of the agreement was the only controverted issue upon the trial.

The allegation contained in Coody's answer of a partnership formed between the two plaintiffs and himself for the ownership and management of the herd was specially denied by plaintiffs in their supplemental petition, and this pleading was verified by plaintiffs before one of their attorneys who acted as notary public in taking the affidavit. Defendant's special exception to this pleading on the ground that the attorney was not a proper official to take the affidavit was correctly overruled. Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393; Kosminsky v. Raymond, 20 Tex. Civ. App. 702, 51 S. W. 51.

G. H. Shawver, after testifying that his brother, J. A. Shawver, owned an interest in the horses in question and that defendant did not own any interest in them, was asked by defendant's counsel if J. A. Shawver had ever paid to witness any part of the purchase money for the herd. Plaintiffs objected to this question on the ground that defendant had not by answer denied under oath allegations in plaintiffs' petition that the two plaintiffs owned the horses as partners. This objection was sustained, and this ruling is made the basis of the second assignment of error. While the petition claimed a joint ownership of the horses in plaintiffs, there was no allegation of a partnership between them, nor of any fact that would constitute a partnership. Evidently the allegation of joint ownership was construed by the court as equivalent to an allegation of partnership in the plaintiffs in such...