Eastland County v. Davisson

• Decision Date: 05 October 1927
• Docket Number: (No. 797-4813.)
• Citation: 298 S.W. 268
• Parties: EASTLAND COUNTY v. DAVISSON et al.
• Court: Texas Supreme Court

298 S.W. 268

EASTLAND COUNTY v. DAVISSON et al.

(No. 797-4813.)

Commission of Appeals of Texas, Section B.

October 5, 1927.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Eastland County against G. A. Davisson and others. A judgment for defendants was affirmed by the Court of Civil Appeals (290 S. W. 196), and plaintiff brings error. Reversed and remanded to the district court.

See, also, 277 S. W. 779; 287 S. W. 901.

J. Frank Sparks and Turner, Seaberry & Springer, all of Eastland, Chandler & Chandler, of Stephenville, and G. O. Bateman, of Breckenridge (W. A. Keeling, of Austin, of counsel), for plaintiff in error.

Levy & Evans, of Fort Worth, John T. Suggs, of Denison, and Conner & McRae, of Eastland, for defendants in error.

POWELL, P. J.

This case is fully stated by the Court of Civil Appeals. See 290 S. W. 196. We shall not restate the case here at any great length. Eastland county sued G. A. Davisson and Saunders Gregg, and their surety, the Southern Surety Company, for the separate sums of $56,160 and $8,000, alleged to be due the county under a road contract between the parties. Under this contract, the Davisson firm was to buy the county's bonds at par and accrued interest, as provided by statute. It also appears that the contractor purchasers then sold the bonds at less than par, placing such proceeds of this latter sale in the county depository to the credit of the county. All of this was in accordance with the terms of the contract. The contractors were to be paid for their work out of such deposit upon proper estimates, etc. However, the county charged the Davisson Company with this lost discount attendant upon the final sale of the bonds on the market; and this suit is an effort to collect a total discount in the aforesaid sum of $64,160. In other words, the Davisson Company, in order to get the work, were apparently willing to lose the discount on the final sale of the bonds.

It is quite clear that the one controlling issue in this case was whether or not the Davisson Company owed this discount. The two controlling issues submitted to the jury in this connection, and their answers thereto, read as follows:

"First special issue: Under the settlement between Eastland county and G. A. Davisson, as evidenced by order No. 3, of date January 2, 1922, with the commissioners' court of Eastland county, was the item of $56,160 representing discount on good road bonds taken into consideration and payment made therefor by balancing off a sum its equal or more, which the county owed the defendant G. A. Davisson? Answer `Yes' or `No.' Answer: `Yes.'

"Second special issue: Under the settlement between Eastland county and G. A. Davisson, as evidenced by order No. 3, of date January 2, 1922, with the commissioners' court of Eastland county, was the item of $8,000, representing discount on good road bonds, taken into consideration and payment made therefor by balancing off a sum its equal or more, which the county owed the defendant G. A. Davisson? Answer `Yes' or `No.' Answer: `Yes.'"

In submitting aforesaid issues, the court charged the jury as follows:

"The burden is upon the plaintiff to establish by a preponderance of the testimony, the negative of issues No. 1 and 2."

The giving of this last-quoted instruction became the basis of the ninth assignment of error in the application, upon which the writ was granted. Said assignment reads as follows:

"The Court of Civil Appeals erred in overruling plaintiff in error's fourth proposition as to the trial court's charge on the burden of proof, as follows: `The trial court erred in its charge on the burden of proof relative to special issues Nos. 1 and 2.'"

The first proposition under aforesaid assignment of error reads as follows:

"Where a party alleges the existence of an agreement of compromise of the matter in controversy, the burden of proof devolves on him to establish the same; and this burden remains on him throughout the trial, notwithstanding the presumption that a settlement covers all past transactions."

The second proposition under said assignment reads as follows:

"An erroneous charge is presumed to have worked injury, and a reversal cannot be denied on the ground that the error was harmless."

This assignment and the propositions thereunder must be sustained. In this connection, we quote from the "statement" in the application as follows:

"The county sued on a debt. The contractor, in his answer, pleaded in bar of the suit an order of the commissioners' court (order No. 3) in which it was claimed that the debt was settled by balancing off a sum equal to the debt which the county owed the contractor. The order did not so recite. It was sought to show that such was its effect by parol testimony. The jury was asked to find whether or not the county's debt had been so paid and settled."

That this charge of the court, requiring Eastland county to prove that its admitted claim against the Davisson firm had not been paid is erroneous is clear. Davisson owed the money at the time it was charged up against him. That being true, the burden was on him to show that the account had been lawfully settled and the manner of its payment. Otherwise he owed the debt as shown by the records. Justice Littler, in his dissenting opinion, published at the place aforesaid, and also shown on pages 2 and 3 of his opinion accompanying this record, very clearly and ably shows the error in this charge, and we content ourselves by referring to his discussion upon this point.

And the latter justice is also correct in holding that injury is presumed when the court incorrectly instructs the jury as to the law. We so held, on certified questions, in the very recent case of Wichita Valley R. Co. v. Williams (Tex. Com. App.) 288 S. W. 425. Our opinion in that case was adopted by the Supreme Court.

There is nothing in this record to remove this presumptive injury to Eastland county by reason of this erroneous charge. The jury found against its claim. The jurors might have done so, not because Davisson proved he paid the claim, but by reason of the fact that the county did not prove that he had not paid it. The jurors might have felt impelled to answer these questions as they did, under the burden of proof as charged, even though they felt that the amount had not been paid; that is to say, the members of the jury may have felt that, the county having failed to discharge its burden in this respect, there was only one thing left for them to do, and that was to decide this issue against the county.

The only way to say that this error was harmless would be to hold that, as a matter of...