Holt v. Wilson, 1284.

• Decision Date: 15 December 1932
• Docket Number: No. 1284.,1284.
• Citation: 55 S.W.2d 580
• Parties: HOLT v. WILSON.
• Court: Texas Court of Appeals

55 S.W.2d 580

HOLT v. WILSON.

No. 1284.

Court of Civil Appeals of Texas. Waco.

December 15, 1932.

Appeal from District Court, Coryell County; Joe H. Eidson, Judge.

Suit by Elsie Wilson against P. D. Holt. From a judgment for plaintiff, defendant appeals.

Affirmed.

R. B. Cross, of Gatesville, for appellant.

T. R. Mears, of Gatesville, for appellee.

GALLAGHER, C. J.

Appellant, P. D. Holt, is the editor, publisher, and owner of a newspaper called the Gatesville Messenger. Appellant, in September and October, 1931, instituted and caused to be conducted what is known as a circulation campaign, which was under the management of Mr. S. Clark Fulks. Certain prizes were offered to canvassers participating in said campaign. The first prize was an automobile and the second a trip to California, or, at the election of the winner, $200 in cash. Other prizes of less value were offered, but consideration of the same is not relevant to the issues involved in this case. Canvassers were invited to contest for said prizes, and the same were to be awarded according to the number of credits or votes earned by them respectively. Each cash subscription secured and paid over to the management carried with it a certain number of credits or votes. The campaign was divided into three periods. The first period lasted three and a half weeks, the second period two weeks, and the third or last period only one week. Each period ended with a calendar week. Subscriptions taken and credits or votes based thereon had greater value during the first period than the second, and during the second period than the third. During the first and second periods all subscriptions were paid direct to Mr. Fulks and credits or votes based thereon awarded to the respective contestants. During the last period all reports of subscriptions received by the several contestants and their claim for credits or votes accruing by reason thereof were required to be deposited by each respective contestant in a sealed ballot box at a local bank. The declared purpose of such provision was that no one, not even Mr. Fulks, should know the actual credits or votes earned by each of the several contestants during said last period. A number of prominent citizens were appointed to act as an advisory board, the declared function of which was to decide any question of sufficient importance to be referred thereto. A committee from such board was to act in canvassing the credits or votes and awarding prizes.

The management of the campaign published in an issue of the paper dated October 8, 1931, an article apparently designed to inspire greater effort on the part of the several contestants. The provisions of said article material to the issues involved in this case were a request that all contestants should submit their respective reports at the office of the paper by 12 o'clock midnight Saturday, October 10, 1931, and an affirmative statement that the "second period" would close at midnight on said day, and that after such close no more reports would be accepted by the management but should be placed in said sealed ballot box. All the several contestants acted on said notice and reported subscriptions secured during said period, and claimed the credits or votes promised therefor. All said reports except one made for Mrs. Johnson by her husband, Mr. Francis Johnson, were shown to have been presented to the campaign manager, Mr. Fulks, at the office of the paper before 12 o'clock midnight upon that date. The testimony with reference to the exact time Mr. Johnson tendered to Mr. Fulks said report for his wife at said office was conflicting. Appellant contended that said report, though actually received and the credits or votes based thereon awarded to Mrs. Johnson after midnight, was tendered to Mr. Fulks by Mr. Johnson before midnight, and received and audited later, because he, said Fulks, was then actually engaged until after midnight in receiving and auditing reports of other contestants and awarding credits or votes thereon. Appellee contended that Mr. Johnson never tendered said report at said office until after midnight, and that the subscriptions then reported should have been awarded only the decreased credits or votes that they would have been entitled to had they been deposited in said sealed ballot box. It is apparently conceded that the third or last period ended at 4 o'clock p. m. Saturday, October 17, 1931. At that time the management furnished to a committee from the advisory board a list of the several contestants and the number of credits or votes which had been awarded to each of them for reports submitted prior to the third or last period. Said committee then opened said sealed ballot box, audited the reports contained therein, and awarded proper credits or votes to the several contestants. The credits or votes so awarded were then added to the list furnished by the management. On the basis of such totals, Mrs. Johnson had the highest number of credits or votes and appellee, Miss Elsie Wilson, the next highest. The committee thereupon awarded the automobile to Mrs. Johnson and a trip to California, or $200 in money, as desired, to appellee. The testimony does not show whether an automobile had been selected and purchased by appellant as first prize prior to the award or not, but it is conceded that an automobile of the kind and quality promised was by the management delivered or caused to be delivered to Mrs. Johnson. Appellee, claiming that she was entitled to the first prize, refused to accept the second prize, and demanded that appellant deliver to her an automobile of the kind and quality promised, which demand was refused.

Appellee thereafter filed this suit against appellant for the sum of $717, which she alleged was the value of the automobile promised as the first prize in said contest. She based her claim that she had won the first prize on her contention that the report of subscriptions taken by Mrs. Johnson during the second period was not tendered to Mr. Fulks until after midnight on October 10, 1931; that under the rule announced and published two days before Mr. Fulks had no right to receive the same; that his action in doing so was wrongful and collusive; and that the subscriptions embraced in said report should have been placed in the sealed ballot box and awarded the lesser number of credits or votes allowed for subscriptions found in said box at the end of the third or last period. She alleged in that connection that, had this been done, she, appellee, would have had at the close of the campaign a larger number of credits or votes than Mrs. Johnson, and would have therefore won the first prize, and would have been entitled to said automobile. Such further recitals of pleadings and facts as may be necessary to a full understanding of the issues of law hereinafter discussed will be made in connection therewith.

The case was tried to a jury. It was admitted that the report filed by Mrs. Johnson about midnight on October 10, 1931, embraced twenty-three five-year subscriptions. The undisputed testimony showed that said report was received and credits or votes awarded thereon to Mrs. Johnson at the rate allowed for such subscriptions during the second period; that, had credits or votes been allowed to her thereon only at the rate for the third or last period, appellee and not Mrs. Johnson would have had the greatest number of credits or votes of all the contestants, and would, under the terms of such contest, have been entitled to the first prize. Appellant, at the close of the testimony, moved for an instructed verdict, which was refused. The court submitted to the jury for determination a single issue, which issue and the answer thereto were as follows: "Do you find that Francis Johnson, husband of Mrs. Eleanor Johnson, appeared at The Messenger office with twenty-three five year subscriptions and offered to report the same to the campaign manager on or before twelve o'clock P. M., October 10, 1931?" Answer: "No."

Neither party objected to such submission or requested the submission of any other issues or charges. The pleadings of the parties and the undisputed testimony showed that each contestant was paid a certain percentage of the amount of cash collected for subscriptions, and that contestants winning prizes were required to return the same or account therefor at the delivery of the prizes won. The testimony further showed without contradiction that the value of the automobile promised as first prize was $717, and that the total commissions received by appellee amounted in the aggregate to $74.42. The court deducted the same from the value of the automobile, and rendered judgment against appellant in favor of appellee for the remainder, $642.58, from which judgment appellant has perfected this appeal.

Opinion.

Appellant presents an assignment of error in which he complains of the action of the court in overruling a plea of abatement interposed by him. He alleged in said plea that only one automobile was promised by appellant, and that, the same having been awarded to Mrs. Johnson and delivered to her, she was a necessary party to the suit. The action of the court on said plea and appellant's exception thereto are preserved and presented by bill of exceptions only. In the absence of an order thereon entered of record, we are without authority to review the action of the court in the premises. Jenkins v. Jenkins (Tex. Civ. App.) 50 S.W.(2d) 341, 342, par. 2; First Nat. Bank v. Herrell (Tex. Civ. App.) 190 S. W. 797, 798, par. 3; Seastrunk v. Kidd (Tex. Civ. App.) 53 S.W.(2d) 678, 680 (first column). However, we are of the opinion no error is shown by said bill. Appellant admittedly delivered said automobile to Mrs. Johnson. Appellee, if in fact entitled thereto, was not required to pursue the same, but had a right to treat such delivery as a breach of contract by appellant and sue for the value thereof. Crim v. Lukenbill (Tex....