Haley v. Nickels, 9923

• Citation: 235 S.W.2d 683
• Decision Date: 20 December 1950
• Docket Number: No. 9923,9923
• Parties: HALEY v. NICKELS.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 683

235 S.W.2d 683

HALEY v. NICKELS.

No. 9923.

Court of Civil Appeals of Texas, Austin.

Dec. 20, 1950.

Thrasher & Blalock, of Austin, for appellant.

William Nickels, pro se; and Phillip J. Robinson, of Austin, for appellee.

GRAY, Justice.

Appellant sued appellee for damages for breach of a written contract, and, in the alternative, for damages resulting from the alleged negligence of appellee.

For cause of action appellant alleged that on May 28, 1948, he and appellee entered into an agreement whereby appellee was to take possession of and operate a gin and gin properties as evidenced by their written contract of that date and attached to appellant's petition.

The written contract designated appellant (the owner of the properties) as first party and appellee as second party. It recited that appellant was desirous of obtaining someone to assist him in the operation of the gin during the current ginning season ending January 1, 1949, and that he was willing to pay a reasonable commission for such services; that appellee desired to make a connection whereby he might assist in the operation of a gin on the commission basis. The compensation agreed to be paid to appellee for his services was fifty per cent of the net income made by the gin company during the ginning season. By paragraph 3 of the contract appellee agreed to:

'(a) Furnish all money necessary and expedient for the operation of and repair of said gin during the current season aforementioned.

'(b) Furnish all money necessary and expedient to buy seed and cotton in the usual course of the gin business.

'(c) Place all profits made on the buying and selling of seed and cotton into the general fund of income of said gin whereby same may be determined in accounting the net and gross income or loss of said company.

'(d) Furnish money, for fuel, oil, salary for hands, for all preliminary repairs up until such time as the income from services rendered by said gin has amounted to enough to pay for same as it accrues.

'(e) Install a water pump and to sufficiently repair or replace the water cooling system both at his own expense, and do same according to the recommendations and specifications set out by the first party.

'(f) Operate said gin safely and prudently, and in the usual manner of operation of such gins, and also take steps necessary for the prevention of unnecessary wear and tear.

'(g) Leave the gin in as good shape as it was when the current season started save and except general wear and tear and to accept the recommendations and judgment of the first party upon final inspection in regard thereto before division of the net profits.

'(h) See that all necessary and reasonable precautions are taken to prevent fire and other hazards, losses or damage.

'(i) Accept full and complete responsibility for injuries to himself, employees, or customers.

'(j) Operate said gin until the complete end of the said ginning season or until January 1, 1949, whichever is later.

'(k) Promote good will and good relations with customers and prospective customers.'

The contract further provided:

'11. It is mutually agreed that the first party has the right to terminate this contract at any time and without notice in case of inefficient operation, gross negligence in operation or the violation of any of these articles by the second party.

'12. It is mutually agreed that in the event the second party should terminate this agreement before the end of the ginning season as aforementioned, the first party shall rightfully keep all net profits as liquidated damages therefor.'

Appellant further alleged that appellee took possession of the gin properties on May 29, 1948; that on September 3, 1948, without cause or justification, and without notice of appellant, appellee abandoned said contract and said gin properties and breached the contract to appellant's injury and damage. Appellant alleged that the damage resulted because appellee 'wilfully, unlawfully and with gross negligence failed and refused' to perform the contract in various respects which resulted in damage to various items of the gin properties. In the alternative, appellant sued in tort for his alleged damages and alleged that appellee acted 'maliciously, unlawfully, with gross negligence and for the purpose of vexing, injuring and harrassing plaintiff, and injuring him in his reputation, good standing and business standing.'

Appellee answered denying that he was negligent; denied he wilfully caused any damage; alleged the gin properties were left by him in better operating condition than when they were received by him, and that appellant was guilty of contributory negligence. Appellee further filed a motion for summary judgment together with supporting affidavits. Appellant answered this motion and filed opposing affidavits.

The trial court heard the motion, found there was no genuine issue as to any material fact, granted appellee's motion and rendered judgment that appellant take nothing.

Rule 166-A, Texas Rules Civil Procedure, which authorizes a summary judgment, in part, provides:

'(b) For Defending Party. A party against whom a claim, counterclaim, or cross-calim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) Motion and Proceedings Thereon. The motion shall be served at least ten days before the time specified for the hearing. ...