Houston Tie & Lumber Co. v. Hankins

• Decision Date: 20 December 1917
• Docket Number: (No. 280.)
• Court: Texas Court of Appeals
• Parties: HOUSTON TIE & LUMBER CO. v. HANKINS et al.

200 S.W. 237

HOUSTON TIE & LUMBER CO. v. HANKINS et al.

(No. 280.)

Court of Civil Appeals of Texas. Beaumont.

December 20, 1917.

Rehearing Denied January 23, 1918.

Appeal from District Court, Tyler County; W. R. Blackshear, Judge.

Action by John W. Hankins against the Houston Tie & Lumber Company, in which the M. Rumley Company intervened. From the judgment, defendant appeals. Affirmed.

R. A. Shivers, of Woodville, and R. W. Franklin, of Houston, for appellant. J. A. Mooney, of Woodville, for appellees.

HIGHTOWER, C. J.

This was a suit filed in the district court of Tyler county by appellee John W. Hankins, as plaintiff, against Houston Tie & Lumber Company, a corporation, and since one of the assignments of error, as best we can understand, challenges the sufficiency of the plaintiff's petition as showing any right of recovery against said defendant, we here set out the plaintiff's petition, omitting the formal parts, as follows:

"For cause of action plaintiff says that he and defendant made and entered into a contract in writing, a substantial copy of which is attached hereto marked Exhibit A, and made a part hereof; that soon after its date in August, 1916, this plaintiff delivered to the defendant in Tyler county, Tex., one certain engine and boiler and attachments thereto, and all the sawmill equipments, which was of the value of $2,000; that the defendant promised and agreed to deliver to this plaintiff the said property above described at any points on the railroad in Tyler county, to be designated by the plaintiff, in as good condition as when received by it, ordinary wear and tear excepted; that said delivery was to be made on the 1st day of January, 1917; that said contract has been breached, and the defendant has failed and refused to deliver said property as contracted and agreed upon; that said property was destroyed by fire and rendered wholly unfit for any use whatever as sawmill property, and the defendant is unable to perform its contract as aforesaid, and plaintiff now sues for the value of said property as above set out.

"Premises considered, plaintiff prays for citation against the defendant, and upon a hearing that he have judgment for his debt and for such general and special relief in law and equity as he may be entitled to."

The written contract mentioned in the foregoing petition and attached thereto and designated as Exhibit A is in the record, but, in view of the disposition that we have decided to make of the case, we think it is unnecessary to set out the contents of this written contract.

The defendant, Houston Tie & Lumber Company, answered by general demurrer and general denial. It appears from recitals in the trial court's judgment that the M. Rumley Company, a corporation, intervened in the suit, alleging that said company had a mortgage upon the property mentioned in plaintiff's petition, and adopted the allegations of plaintiff's petition, and prayed for relief and protection as mortgagee, etc. We are unable to discover the intervener's petition in the transcript in this case, and are only apprised of the intervention by the recitals in the judgment, as before stated.

The cause was tried before the court without a jury, and judgment was rendered and entered for the plaintiff, John W. Hankins, and said intervener, M. Rumley Company, against said defendant, Houston Tie & Lumber Company, for damages in the sum of $600 and costs of suit, to which judgment Houston Tie & Lumber Company duly excepted and gave notice of appeal to this court, which appeal has been duly perfected.

There were no findings of fact or conclusions of law filed by the trial court. The first assignment of error found in appellant's brief is as follows:

"The court erred in rendering judgment for the plaintiff, because the plaintiffs had no pleadings sufficient to entitle them to a judgment or upon which judgment might be based."

This assignment is submitted as a proposition. As we construe this assignment, it could only mean that the petition of the plaintiff below, John W. Hankins, who is one of the appellees here, was insufficient in law to show any cause of action as against appellant, and that therefore the same was subject to appellant's general demurrer, and that such demurrer should have been sustained.

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