Hopkins v. Clark

• Decision Date: 01 January 1857
• Citation: 20 Tex. 64
• Parties: ANDREW M. HOPKINS v. WILLIAM CLARK.
• Court: Texas Supreme Court

20 Tex. 64

ANDREW M. HOPKINS

v.WILLIAM CLARK.

Supreme Court of Texas.

1857.

Where a deposition read as follows: “The same answer made by my daughter, H. H. Rogers, to the interrogatories propounded to her and myself in said cause, and sworn to by her on the 8th day of January, 1856, I hereby adopt as my answers, and I corroborate her statements in all the facts therein stated, which are material in said cause to said parties;” which was objected to at the trial “upon the ground of informality,” and excluded; this court said, If it should be held that the court ought to have disregarded this objection, it not being in writing and notice given thereof, as is contended for upon the authority of the case of Scott v. Delk, 14 Tex. 34, still the exception taken would not avail the appellant; because the answer, if admitted, would have been cumulative; and, from the qualification inserted in it, restricting her corroboration to the facts “which are material” (which is swearing to facts with an undefined reservation), it could not have given any additional strength to the defense, and certainly would not have changed the verdict.

Where the defendant, after the plaintiff had rested his case, gave in evidence the deposition of a female witness, and then proposed to call the same witness in person to disprove statements made by the plaintiff's witnesses, which, it was alleged, defendant had no reason to anticipate; and the plaintiff objected, unless the deposition of said witness were withdrawn, and the witness placed upon the stand to be examined de novo; which objection was sustained, and defendant declining to withdraw the deposition, the witness was excluded; it was held that it was equivalent to an offer to recall a witness, which is within the sound discretion of the court; and that there was no cause to believe that such discretion had been abused in this case, but the contrary.

Appeal from Travis. Tried below before the Hon. Thomas H. DuVal.

Suit by appellee against appellant for damages for breach of contract to convey 640 acres of land. In 1853 defendant, residing at Austin, Texas, wrote a letter to his mother and sister, Mrs. Hopkins and Mrs. Rogers, in Tennessee, in which he told them that if they could get any one to bring them to him he would pay such person 640 acres of land, or 320 acres and the expenses of the trip. Upon the faith of this letter, plaintiff, being about to remove to Texas, undertook to remove Mrs. Hopkins, Mrs. Rogers, and the family of the latter, six in all, to Austin, Texas.

A. J. Clark, a son of the plaintiff, testified that his father furnished a two-horse wagon, team, and driver, for the removal of Mrs. Hopkins and Mrs. Rogers, and her family; that Mrs. Hopkins and Mrs. Rogers put into the wagon some 100 pounds of bacon and 100 or 150 pounds of flour, and that aside from that plaintiff furnished all the provisions; that they eat at the same table with the plaintiff's family and were brought through in the same manner and treated as well as the plaintiff's family, and had the boy to make fires, bring water, drive, etc.; that plaintiff brought them to Austin; and when plaintiff demanded the 640 acres of land, which he did immediately thereafter, defendant (in substance) refused, or only offered upon conditions which plaintiff was not bound to accept, and did not accept.

Ferguson, a witness for plaintiff, had come along in same company, and corroborated the statements of the first witness as to the circumstances of the removal; and had heard no complaints on the way. Fulk, a witness for plaintiff, corroborated the testimony of the first witness as to the circumstances of defendant's refusal to convey the land.

The plaintiff gave in evidence the deposition of John Norman, of Tennessee, to prove the circumstances under which the plaintiff undertook the removal of the parties, and the circumstances of the said Mrs. Hopkins and Mrs. Rogers, who he testified, were in such indigent circumstances that they could not have furnished provisions for the journey. It was agreed that the value of land of average quality within from 50 to 100 miles of Austin, in 1853, was 50 cents per acre. Here plaintiff rested his case.

John Peri, a son of Mrs. Rogers, 16 or 17 years of age, witness for the defendant, testified that he drove the wagon part or most of the way; that his mother put in some meat and flour at the start, he thinks enough for the journey; that Clark was not to much expense out; and was no protector, etc.

Mrs. Rogers' deposition; that she contracted with plaintiff for the removal under the letter from the defendant; that plaintiff agreed with her to take land within from 50 to 100 miles of Austin; that he contracted to furnish a good two-horse wagon, large enough for witness' family and such articles as she was compelled to take with her; to put two good able horses in the wagon, or three, if needed to enable them to remove with proper dispatch; he was also to furnish a driver and a boy to build her fires and wait upon her family; and to furnish provisions for herself and family. Witness provided herself with provisions, save sugar, which plaintiff furnished; furnished her own bedding, driver and cooking utensils; Clark's boy drove sometimes. The wagon furnished was very indifferent, old and unsuitable for the purpose, and the horses equally so, in consequence of which they were delayed upon the route longer than necessary. Plaintiff paid out for witness and family not more that $25 or $30, in all; was no protector, but treated her uncivilly upon the whole trip. Plaintiff failed to fulfill his contract with witness...