Houston, E. & W. T. Ry Co. v. Ryan

• Decision Date: 09 December 1896
• Citation: 38 S.W. 221
• Parties: HOUSTON, E. & W. T. RY. CO. v. RYAN et al.
• Court: Texas Court of Appeals

38 S.W. 221

HOUSTON, E. & W. T. RY. CO. v. RYAN et al.

Court of Civil Appeals of Texas.

December 9, 1896.

Appeal from district court, Angelina county; James F. Polley, Judge.

Action by J. W. Ryan and others against the Houston, East & West Texas Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed.

W. H. Wilson and Baker, Botts, Baker & Lovett, for appellant. Mantooth & Townsend, for appellees.

FLY, J.

This appeal is from a judgment for $246.31, rendered in favor of J. W. Ryan against appellant. The suit was for $233.08, the value of certain wood which, it was alleged, had been used by appellant, and that the same had not been paid for. The petition was excepted to on the ground that it failed to show either a contract between Ryan and the railway company or a conversion of the property on its part. It is alleged in the petition that F. L. Johnston and T. J. Todd were "agents and employés of the said defendant the Houston, East & West Texas Railway Company, and as such agents and employés were empowered and authorized to contract for and buy wood for the use of the said railway company in the said county of Angelina, state of Texas, and that said plaintiff contracted with the said F. L. Johnston and T. J. Todd to deliver on the right of way of the Houston, East & West Texas Railway 774½ cords of wood," etc. These allegations present a case of contract made by the railway company through its agents Johnston and Todd; but, in another part of the petition, it is alleged that, after the wood had been delivered on the right of way, the railway company, without the consent of either Ryan or Johnston and Todd, "took up, burned, and destroyed 123½ cords of said wood," etc. That allegation would seem to be an attempt to set up a conversion, but is followed by an allegation of the contract price being due and unpaid, and by a prayer for judgment for that amount. The petition may have been sufficient to have admitted testimony showing that the railway company had refused to pay for the same, but the trial seems to have proceeded on the theory of a conversion of the property by the railway company, and instructions were given permitting the jury to return a verdict in favor of Ryan for the contract price, not the value, if a conversion was shown. There were no allegations that supported such submission. Conversion not being alleged, a recovery on the ground of conversion cannot be sustained. This proposition would appear to be...