Farrar v. Beeman

• Decision Date: 30 January 1885
• Docket Number: Case No. 1945.
• Citation: 63 Tex. 175
• Parties: J. R. FARRAR v. C. W. BEEMAN ET AL.
• Court: Texas Supreme Court

63 Tex. 175

J. R. FARRAR

v.C. W. BEEMAN ET AL.

Case No. 1945.

Supreme Court of Texas.

Jan. 30, 1885.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

C. W. Beeman, S. A. Beeman and J. A. Beeman brought this suit against the appellant J. R. Farrar upon a contract which was entered into by the Beemans and the Tecalote Stock Company of New Mexico, dated March 7, 1882, and executed in duplicate. The contract was assigned by the Tecalote Stock Company to James Farrar with the consent of the Beemans, and it is as follows, viz.:

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                ¦THE STATE OF TEXAS, ¦)¦
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                ¦County of Navarro.  ¦)¦
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Know all men by these presents, that we, C. W. Beeman, of said Navarro county, on the one part, representing himself and S. A. Beeman and J. A. Beeman, by the power of attorney of the said S. A. Beeman and J. A. Beeman, and the Tecalote Stock Company of New Mexico on the other part, do hereby enter into the following agreement:

I, C. W. Beeman, representing myself and the said S. A. Beeman and J. A. Beeman, on my part do hereby agree and bind myself to deliver at my stock pen in Navarro county to the said Tecalote Stock Company, or their agent, M. Lynch, on, or before if practicable, the 22d day of May, 1882, one thousand head of stock cattle. And it is agreed and understood that I am to include in said number of cattle all that certain stock of cattle branded Z, also Z on the side and O on the neck, also 9 B. And if the number of cattle of the said brands should exceed one thousand head, the excess shall also be included; and further, if I should fail to find and gather as many as one thousand head of cattle of said brands, then I am to make up and deliver the deficit in number of other stock of the same or as good average as to quality as the stock of said brands.

It is also specially understood that all the three-year-old steers, and steers over that age, are reserved and are not included in this contract. There are also reserved from sale and the operation of this contract fifteen mother cows and one bull of the Z and Z with O on neck brands. There are also reserved from the operation of this contract some few old cows which have heretofore been given by S. A. Beeman to her daughters, of the 9 B brand.

The Tecalote Stock Company, acting by their agent M. Lynch, agrees and binds itself to pay to C. W. Beeman $11 per head for said cattle when delivered, and on this day do advance to said C. W. Beeman on said cattle the sum of $3,000, which is to be credited on the total amount of the price of said cattle, and agree also to pay the price of $11 each for two saddle horses which the said C. W. Beeman agrees to deliver to said Tecalote Cattle Company at the same time, being two of the seven horses now owned by J. A. Beeman.

And it is further agreed between the parties that the Tecalote Stock Company shall designate some man who shall be an available and active cattle drover or herdsman, who shall be employed at reasonable wages by the said C. W. Beeman, who shall assist the said Beeman in gathering and delivering the said stock.

It is understood that the Tecalote Stock Company will put their road brand on the cattle at the place of delivery, and will pay for them according to the tallies kept by the parties as the same are road-branded.

It is agreed that in the event that the Tecalote Stock Company shall fail or refuse to accept and receive said cattle at the time and place appointed, then the $3,000 paid as above stated shall be forfeited and held by said C. W. Beeman. And it is further agreed that in the event the said C. W. Beeman shall fail or refuse to deliver said cattle, then the said Tecalote Stock Company are to gather the stock of said brands at the expense of said C. W. Beeman, and after gathered and road-branded to pay the price of $11 per head less the expense of gathering and herding, and damages to amount of $3,000.

This contract is to become of full force and effect as soon as the Tecalote Stock Company shall deposit to the credit of C. W. Beeman in the bank of Jester Bros., Corsicana, Texas, the said sum of $3,000.

The plaintiffs alleged that the contract went into effect upon the terms specified, viz., that the Tecalote Company should pay at the time when it was entered into, to the plaintiffs, $3,000, to be applied as a credit on the sale, and to be treated and retained as a forfeit in case the company failed to accept and receive the cattle when tendered according to the provisions of the contract. The petition further alleged that the plaintiffs delivered to the appellant Farrar four hundred and eighty-one head of the cattle contracted for in pursuance of the contract, for which he paid them the sum of $2,000; that the amount due for said four hundred and eighty-one head of cattle at the price stipulated--$11 per head--amounted to $5,291, thus leaving a balance due on said four hundred and eighty-one head of cattle of $3,291. Plaintiffs alleged that Farrar refused to accept the remainder of the cattle contracted for, although they were ready to deliver them and offered to do so, whereby he forfeited the $3,000 which plaintiffs had received upon the terms above stated under the contract.

The plaintiffs prayed for judgment for their said demand and for general relief.

The answer of appellant consisted of a general demurrer and five special exceptions as follows:

1. That appellees failed to allege any breach of the contract sued on.

2. That appellees did not allege the performance of the conditions precedent to the recovery of the forfeiture claimed, and showed no reason for holding the $3,000 as liquidated damages.

3. That appellees did not allege facts sufficient upon which to base a recovery of the forfeiture claimed.

4. That there was no tender of the cattle alleged.

5. That the court was without jurisdiction, because the petition shows only $291 due. Appellant also pleaded in reconvention for damages, alleging that appellees had failed to comply with the contract, whereby appellant was damaged.

Verdict for appellee for $2,168.33.

Simpkins, Simpkins & Neblett, for appellant, that the sum designated ($3,000) was a penalty and not stipulated damages, cited: Lampman v. Cochran, 16 N. Y., 275; Shute v. Taylor, 5 Metc., 61; Taylor v. Marcella, 1 Wood, 302; Hoagland v. Segur, 38 N. Y., 230; Berry v. Wisdom, 3 Ohio St., 241; Moody v. Culver, 18 Barb., 336; 1 Pomeroy's Eq., 444; Williams v. Green, 14 Ark., 315, 322; Central Law Jour., vol. 19, No. 16, p. 304.

There could be but one act of performance, citing: 2 Pars. on Cont., 31, 164; Clark v. Baker, 5 Metc., 452; Robert v. Beatty, 2 Penn., 63.

The $3,000 could not be recovered for a partial failure: Jamison v. Gray, 29 Ia., 537;Lee v. Overstreet, 44 Ga., 507; Shreve v. Brereton, 51 Penn. St. (1 P. F. Smith), 171; Hamaker v. Schroers, 49 Mo.; Lyman v. Babcock, 40 Wis., 516;42 Id., 679.

A partial performance, accepted, left appellee to his remedy for damages, depending on proof and not fixed damages, citing: Shute v. Taylor, 5 Metc., 61; Mason v. Decker, 72 N. Y. (27 Sick.), 595; Duston v. McAndrew, 44 N. Y. (5 Hand), 72; Booth v. Tyson, 15 Verm., 515; 2 Jones (N. C.), 403;Bowker v. Hoyt, 18 Pick., 555;2 Jones (N. C.), 454;Miner v. Bradley, 22 Pick., 457; Taylor v. Marcella, 1 Wood, 302; Roberts v. Beatty, 2 Penn., 69.

No briefs on file for appellees.

WALKER, P. J. COM. APP.

The plaintiffs sued, in effect, for damages for the failure on the part of the defendant to receive the residue of the cattle which, under the contract, he had agreed to take, and for the amount left unpaid for those cattle which he had received. The contract itself was set forth in the petition, together with the facts which had transpired under it, and the plaintiffs in their petition construed them as entitling them to the full amount of the stipulated damages, $3,000; and they prayed for judgment in accordance with that interpretation, and also for general relief. Their claim as thus asserted was for an amount within the jurisdiction of the district court, and the court did not err in overruling the defendant's exception to the jurisdiction of that court. The exception to the jurisdiction proceeds upon the idea that if the plaintiffs are not entitled under the facts alleged to maintain the claim set up in the petition for $3,000, as being forfeited upon the assumption that the same may properly be appropriated by them as forfeited liquidated damages which has been already paid into their hands, that they seek to enforce no other cause of action in the petition except for $291 as unpaid purchase money, and that that sum not being within the jurisdiction of the district court, that court would not have jurisdiction of the case. This view is, we think, more specious than strictly consistent with a correct analysis of the character of the suit.

The plaintiffs evidently are seeking to recover damages for the default of the defendant in failing to receive all the cattle contracted for, instead of receiving a part as he did, and refusing to accept the remainder.

For the cattle they had delivered they received at the time of their delivery $2,000, which with the $3,000 paid on account when the contract was entered into, left on that transaction due the plaintiffs only $291; but it was not for that sum alone they sue, but they allege that they are entitled to $3,000 as forfeited stipulated damages, which being already in their hands they need not ask a judgment for; but under that view of their right to compensation as damages, the defendant would be indebted to them on account of the cattle which were delivered to him in the sum of $3,000, on an estimate of the value of said cattle at $11 per head. This was in...