Hammond v. Decker

• Citation: 102 S.W. 453
• Parties: HAMMOND et al. v. DECKER.
• Decision Date: 30 April 1907
• Court: Court of Appeals of Texas

102 S.W. 453

HAMMOND et al. v. DECKER.

Court of Civil Appeals of Texas.

April 30, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by H. R. Decker against Frank Hammond and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

W. G. Love, R. J. Channell, and Lovejoy & Parker, for appellants. Ewing & Ring and Hogg, Watkins & Jones, for appellee.

REESE, J.

H. R. Decker sued Frank Hammond, Alex McCullough, John Lovejoy, and G. A. Hill to recover certain personal property composing a well-boring outfit, or its value, together with damages for its detention. A writ of sequestration was sued out by plaintiff, under which the property was seized. Defendants replevined, executing a bond with S. S. Ashe and A. C. Allen, sureties. Afterwards plaintiff filed an amended petition setting up claim to certain other articles, not included in the original petition, nor in the sequestration writ or replevin bond. Defendants answered by general demurrer and general denial. Upon trial with a jury there was a verdict for plaintiff for all of the property, valuing it in the aggregate at $2,739, and for $2,000, as the value of the hire of that part of the property that had been replevined. From the judgment defendants appeal.

The assignments of error present objection to the action of the court in the admission and rejection of evidence, and in giving and refusing charges. No complaint is made that the verdict and judgment are not supported by the evidence. The first assignment of error is without merit. While on the stand as a witness, plaintiff was asked by his counsel: "Do you own the property referred to in here [referring to the petition]?" To which witness answered: "Yes, sir." He was then asked: "Are you the owner of these articles?" To which question defendants objected as leading and suggestive. The court overruled the objection, but it does not appear from the statement in appellants' brief that the question was answered. Appellants refer to the stenographer's report, but the statement in the brief should show, without requiring the court to look to the record for, a statement essential to show the merit of the assignment. We have, however, in this instance, examined the stenographer's report, and find that the question objected to was not answered. At all events, plaintiff afterwards testified, in answer to questions not objected to, that the property belonged to him.

There was no error in permitting plaintiff to refer to the petition to refresh his memory as to the numerous articles composing the well-boring outfit. It was otherwise shown that the part of the petition referred to was dictated by plaintiff to his counsel from a list of the articles made out by him from a personal examination of them, and was a correct copy thereof. He certainly would have been allowed to refer to such list to refresh his memory, and could, with equal propriety, refer to the petition shown to be a correct copy of the list. Witness had previously testified, without objection, that he was the owner of the property described in the petition.

Plaintiff was asked as to the reasonable value of the various articles of property, to which appellants objected on the ground that the testimony was "incompetent, irrelevant, and inadmissible for any purpose." Under the assignment of error complaining of the action of the court in overruling the objection, the proposition is made that the value of the property "could be determined in no other way than by proof of its market value." The evidence was not objected to on this ground. The assignment is overruled. Caplen v. Cox, 92 S. W. 1048, 15 Tex. Ct. Rep. 269.

The proposition under the fourth assignment is entirely foreign to the assignment, and cannot be considered.

It does not appear that the sequestration bond and writ and replevin bond were read to the jury or submitted to them. The most that appears from the record is that, when offered, the court remarked that he would "consider them in." If this was error, it was harmless. The assignment is overruled.

The court did not err in refusing to permit plaintiff to testify on cross-examination, over objection of his counsel, as to the depth to which he bored the 10-inch well. The fact was immaterial to any issue in the case. Nor did the court err in stating, in this connection, that there was no issue to be determined except the ownership and value of the property. In this statement, after careful examination of the record, we agree.

We agree with the trial court that the clause in the contract between the Annie Bess Oil Company and appellee, upon which appellants partly rely for their authority to take this property, cannot be so construed. This appears to us to be really the vital point in the controversy. The contract was that Decker should bore 1,500 feet, if oil was not sooner found. He was to be paid $2,000 in cash and $3,000 in stock when he got down 1,000 feet, or, if he went down 1,500 feet, he was to receive $3,000 in cash and $3,500 in stock. The contract contains this provision: "It is understood and agreed that in event that the said H. R. Decker, party of the second part, expends the cash received from this company and the proceeds of his stock as provided under this contract in drilling said well, and the required depth of 1,500 feet has not been reached, the party of the second part shall not be obligated to expend any more money, and it shall be optional with the Annie Bess Oil Company whether they shall continue the drilling of said well to the required depth, or shall abandon same. If the well is taken over by the Annie Bess Oil Company, and the drilling continued, the said H. R. Decker hereby agrees that the said company shall not be required to pay any more than actual cost for drilling operations, and shall have the free use of the drilling outfit and derrick belonging to the said H. R Decker, party of the second part." No oil having been found at 1,300 feet, the work was discontinued. Appellee was paid by the oil company $2,600 in cash, being the pro rata price for...