Crosby County Cattle Co. v. Corn

• Decision Date: 27 June 1928
• Docket Number: No. 3021.,3021.
• Citation: 25 S.W.2d 283
• Parties: CROSBY COUNTY CATTLE CO. et al. v. CORN et al.
• Court: Texas Court of Appeals

Page 283

25 S.W.2d 283

CROSBY COUNTY CATTLE CO. et al. v. CORN et al.

No. 3021.

Court of Civil Appeals of Texas. Amarillo.

June 27, 1928.

Rehearing Denied September 26, 1928.

Judgment of Court of Civil Appeals Affirmed by Supreme Court March 20, 1930.

Appeal from District Court, Crosby County; Homer L. Pharr, Judge.

Two separate suits by Frank Corn and by Frank Corn and others against the Crosby County Cattle Company and others, consolidated and tried as one suit. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Judgment affirmed in 25 S.W.(2d) 290.

Goree, Odell & Allen, L. L. Gambill, and Dayton Moses, all of Fort Worth, L. A. Wicks, of Ralls, W. P. Walker, of Crosbyton, and T. L. Price, of Tahoka, for appellants.

Bledsoe & Crenshaw and Lockhart & Garrard, all of Lubbock, for appellees.

JACKSON, J.

On July 22, 1926, Frank Corn, as plaintiff, presented to the district judge a petition seeking an injunction against the Crosby County Cattle Company, a Texas corporation, Sidney Webb, and Z. Boaz, to restrain them and each of them from using or attempting to use the cattle brand known as the Half-Circle S. The petition was considered by the judge, a temporary restraining order, as prayed for, was granted, and the case filed on July 23d, as cause No. 1019.

Thereafter, the Crosby County Cattle Company and Sidney Webb sought a dissolution of said restraining order, and on August 13, 1926, their motion to dissolve was overruled and the temporary injunction continued in force until the further order of the court.

On September 20, 1926, Frank Corn and his wife, Kittie Rider Corn, as plaintiffs, presented to the district judge their petition seeking an injunction against the Crosby County Cattle Company, Sidney Webb, Z. Boaz, Joe Cole, and Will Luman, to restrain them and each of them from going upon the ranch held under lease and in the possession of the plaintiffs and gathering, inspecting, or in any way interfering with the cattle thereon, all of which were alleged to belong to plaintiffs, a temporary injunction, as sought, was granted, writs issued, and the case filed as cause 1039.

On March 29, 1927, on motion of the Crosby County Cattle Company and Sidney Webb, the court entered an order consolidating the two suits, to be thereafter numbered 1041.

The transcript is not compiled in conformity with Rule 85 for the District and County Courts. The pleadings consist of forty-six pages of typewritten matter and the statement of the pleadings in the briefs of the parties is so intermingled with the allegations of fact and the evidence in the record, as to be of little assistance to us in stating the pleadings.

The plaintiffs, in an amended petition in 1041, from which the names of Joe Cole and Will Luman are omitted, allege that they were the lessees of certain real property in Crosby and Garza counties, known as the Half-Circle S Ranch; that in connection therewith, they were, and had been for eleven years, the owners of a certain brand known as the Half-Circle S Brand, which had been properly registered and recorded in the office of the county clerk of Crosby county, Tex.; that for the purpose of identifying and distinguishing their cattle from other cattle, they had branded their cattle Half-Circle S; that they now own and have hundreds of cattle so branded; that no other person is entitled to use said brand, and, in many instances, said brand is the only means by which they are able to identify their cattle.

That the Crosby County Cattle Company, Sidney Webb, and Z. Boaz are all engaged in the cattle business in Crosby and Garza counties and own many cattle therein; that they are each threatening to and will, if not restrained, use the Half-Circle S and brand their cattle therewith, which will result in great confusion as to the ownership and identity of the cattle and render it impossible for plaintiffs to identify and distinguish their cattle from those of the defendants so branded; that the plaintiffs are without a legal remedy and will suffer irreparable loss if defendants are permitted to use said brand.

Plaintiffs allege that about August 17, 1926, they owned 280 head of cattle which they had purchased or raised, branded with the Half-Circle S brand, and all of which were in their possession on their leased ranch; that the defendants, and especially the Crosby County Cattle Company, had, without authority or justification, falsely and maliciously asserted that they were the owners of said cattle, and the Crosby County Cattle Company had instituted suit in the district court of Crosby county against the plaintiffs, to recover title and possession of said cattle and sought to have a receiver appointed to take possession of plaintiffs' property and deliver it to the cattle company; that notwithstanding plaintiffs knew that the defendants were not entitled to any of said cattle, for the sole purpose of avoiding litigation, expense, and trouble, they entered into a written contract with the Crosby County Cattle Company, by the terms of which it was agreed that John Rider, as an arbiter, should go upon plaintiffs' ranch, inspect the cattle thereon, and determine if any, and if so how many, of said cattle were the property of said cattle company; that the ownership of the cattle was to be determined mainly by their ages; that the arbiter was fully empowered to gather, inspect, and select from said cattle all of those belonging to the cattle company, and award them to said company; that all of the cattle not so selected and awarded belonged to plaintiffs. The suit of the cattle company, No. 3032, seeking a receiver, was to be dismissed and all parties to the arbitration agreement should abide the decision of said arbiter.

That after the execution of the arbitration agreement, the arbiter went upon plaintiffs' ranch, and after inspecting all of the cattle thereon, unhampered and unhindered by plaintiffs, but without hearing any testimony as to the ownership thereof, selected 156 cows and awarded them to the cattle company; that while plaintiffs knew said cows were their property, in order to have the controversy ended, they purchased said 156 cows, received a bill of sale therefor from the cattle company, and paid $7,560 to the company, which was accepted and appropriated by it; that said cattle company falsely and fraudulently made the arbitration agreement without any intention, at the time, of abiding the decision of the arbiter, and thereafter repudiated the award of the arbiter, the sale of said cows to plaintiffs, refused to dismiss its suit No. 3032 and forcibly took from plaintiffs said 156 cows, which was a breach and a revocation of the arbitration agreement, as well as the sale of said cows to plaintiffs; that after securing and appropriating the $7,560, paid for the 156 cows, the cattle company, acting by its president, Sidney Webb, and with Z. Boaz and Sidney Webb, individually, entered into a conspiracy to fraudulently take from plaintiffs said 156 cows, and to carry out such conspiracy employed Will Luman, a well-known dangerous and violent character, and instructed him to go upon plaintiffs' ranch and forcibly take therefrom said cattle.

That on the night of September 19, 1926, Will Luman and Joe Cole, together with other employees in the employment of and under the direction of the defendants, went upon plaintiffs' ranch, armed with Winchesters and other deadly weapons, and rounded up and took from plaintiffs 108 cows and 80 calves; that said cattle were taken without the consent of plaintiffs, without any legal authority, warrant, or court order, were removed by stealth, driven from plaintiffs' ranch, and appropriated to the use and benefit of defendants; that learning of the intention of defendants to take said cattle from their ranch in the manner above alleged, Frank Corn applied for and obtained an injunction restraining the defendants, their agents and employees, from taking said cattle; that defendants' agents knew plaintiffs were seeking said injunction, but took the cattle and removed them from the ranch before a writ could be served upon them.

Plaintiffs say that by reason of the premises and their ownership of said 156 cows, independent of the purchase thereof from the Crosby County Cattle Company, the consideration for the $7,560 paid by them to the cattle company failed; that if they are mistaken as to the validity of the award of the arbiter, and in the event the court holds that such award is binding on all parties thereto, then plaintiffs allege that they have been damaged by the unlawful conversion of said cattle in the sum of $9,800.

Plaintiffs allege the value of the cattle and plead, in sufficient detail, actual damages aggregating the sum of $17,360. They allege that the acts of the defendants in making the arbitration agreement fraudulently; entering upon their premises with force of arms and at night, taking and appropriating plaintiffs' cattle; the unlawful trespass upon the premises, and the wanton and gross oppression of plaintiffs by force, retaining the $7,560, all were done willfully, maliciously, and in gross and wanton disregard of the plaintiffs' rights, for the wrongful and fraudulent purpose of oppressing them and depriving them of their property, and sufficiently plead exemplary damages in the sum of $25,000.

The defendants the Crosby County Cattle Company and Sidney Webb answered by general demurrer, numerous special exceptions, a general denial, a plea of not guilty, and especially denied that the plaintiffs were the owners of the Half-Circle S brand, or of the 156 head of cattle at the time they were purchased from the plaintiffs by the Crosby County Cattle Company; specially denying that they acted in bad faith, or that they authorized or directed any one to go upon plaintiffs' premises and take therefrom property belonging to plaintiffs, or that they committed any trespass upon plaintiffs or their ranch, in any...