Jordan v. Crisp

• Decision Date: 11 April 1955
• Docket Number: No. 6459,6459
• Parties: L. F. JORDAN, Appellant, v. J. R. CRISP et al., Appellees.
• Court: Texas Court of Appeals

Page 482

278 S.W.2d 482

L. F. JORDAN, Appellant, v. J. R. CRISP et al., Appellees.

No. 6459.

Court of Civil Appeals of Texas, Amarillo.

April 11, 1955.

Rehearing Denied May 9, 1955.

Campbell & Brock, Lubbock, for appellant.

Nelson & McCleskey, Lubbock, for appellees.

MARTIN, Justice.

Appellees received a judgment in the trial court but filed no brief supporting their position in the appeal of this cause of action. Following judgment in this court, both appellant and appellees filed a motion for rehearing. The original opinion, incorporated herein, ruled that appellees were entitled to one-half the funds received by appellant from the sale of cotton originally held by the appellees to secure cash advances made to appellant's children. Appellant owned an undivided one-half of this cotton and his children owned an undivided one-half thereof. The value of the cotton was not established and the cause was remanded to the trial court to ascertain the value of one-half the cotton as owned by the children. This opinion is in lieu of the original opinion rendered herein.

Appellant, L. F. Jordan, engaged in farming operations in conjunction with his son, R. D. Jordan, and his daughter, Marguerite Raye. The pleadings and evidence reveal that the farm operation was conducted on what is commonly known as the 'halves'. L. F. Jordan furnished all equipment, seed, irrigation and other expense while his son and daughter furnished all the labor for making the farm crop. The crop was divided equally between appellant and his children. Jaco v. W. A. Nash & Co., Tex.Civ.App., 236 S.W. 235, Syl. 2. There is no pleading raising the issue that appellant and his children were partners. Appellees J. R. Crisp, Sr. and J. R. Crisp, Jr., a partnership d/b/a Hurlwood Gin advanced to R. D. Jordan and Marguerite Raye, during the farming season, the sum of $1,673.16 as expenses for hoeing and gathering the crop of cotton and were delivered certain written instruments executed by the respective party obtaining the funds. These instruments are described in detail in the discussion of the controlling issue in the cause. The money advanced on the execution and delivery of such instruments was not repaid to appellees.

Appellees sued appellant, L. F. Jordan, and R. D. Jordan and Marguerite Raye for the cash advances made and recovered judgment against them jointly and severally for the sum of $1,673.16 with six per cent interest from date of judgment. Only L. F. Jordan answered and contested the suit and appealed from the final judgment of the trial court in favor of appellees.

Appellant's point of error three as presented originally in this appeal alleges that the trial court erred in overruling appellant's motion for a peremptory judgment at the close of the evidence as well as in overruling his objections to all oral evidence respecting his promise to pay the debt incurred by R. D. Jordan and/or Marguerite Raye. Other points asserted by appellant likewise raise the issue that appellant's promise was one to answer for the debt of another and within the statute of frauds, On motion for rehearing, a re-examination of the record under the various points of error leads to the opinion that appellant's agreement was of such a character as to create in independent obligation on his part and not one within the statute of frauds.

The jury in the cause of action found, and the evidence supports such finding, that L. F. Jordan represented and agreed that if certain cotton tickets held by appellees should be delivered to him he would sell the cotton and immediately after doing so repay to the appellees the advances here involved. The jury further found that the appellees relied upon the above agreement of L. F. Jordan in delivering to him the cotton tickets in issue.

On motion for rehearing, appellant seeks the rendition of judgment in his favor in this court by reason of his principal contention that there is neither pleading nor proof that the appellant agreed that he was to account to appellees for one-half of the proceeds of the sale of said cotton. Under the pleadings filed by appellees in the cause and the proof supporting the same, the jury found that appellant 'agreed that if such cotton tickets should be delivered to him he would sell the cotton and immediately after doing so repay to the gin the advances here involved'. (Emphasis added.) The only reasonable presumption that can be drawn from the above finding of the jury, and facts supporting such finding, is that appellant was going to pay the gin for its advances out of the proceeds of the sale of the cotton. The issue as submitted follows appellees' pleadings almost word for word. No reasonable presumption can be drawn that the funds used to pay the gin were to be derived from any source other than funds received from the sale of the cotton. It is therefore beyond dispute that appellant, viewing the situation in the best light for the appellant, agreed to repay appellees for their advances made to raise the crop of cotton and that such payment was to be made from the proceeds of the sale of the cotton as originally held by appellees. Appellant's points of error as originally asserted and as presented in its motion for rehearing are overruled.

Appellees' motion for rehearing raises a serious issue and one considered at length in the preparation of the original opinion. Appellees assert that L. F. Jordan agreed with appellees that if they would deliver to him the cotton tickets held by them that he would sell the cotton and immediately pay to appellees the amount of their advances as made to his children. Appellees assert that such agreement was an independent obligation to pay the advances made by them upon the consideration that they released all the cotton tickets to appell...