Kelsey v. Myers

• Decision Date: 25 April 1930
• Docket Number: No. 691.,691.
• Citation: 29 S.W.2d 855
• Parties: KELSEY et al. v. MYERS.
• Court: Texas Court of Appeals

29 S.W.2d 855

KELSEY et al. v. MYERS.

No. 691.

Court of Civil Appeals of Texas. Eastland.

April 25, 1930.

Rehearing Denied July 11, 1930.

Error from District Court, Comanche County; Joe H. Eidson, Judge.

Suit by E. J. Myers against Arthur Kelsey and another, wherein sureties on replevy bond after attachment was levied became parties to suit. To review the judgment rendered, defendants bring error.

Affirmed.

F. O. Jaye, of De Leon, for plaintiffs in error.

Y. W. Holmes, of Comanche, for defendant in error.

On Rehearing.

LESLIE, J.

This suit was instituted by E. J. Myers, defendant in error, against Arthur Kelsey and T. E. Welch, plaintiffs in error, to recover on an alleged contract for work and labor performed by plaintiff at the instance of Kelsey and Welch on the H. E. White well No. 1 at Hasse, Comanche county, Tex., and the Cozby well No. 1, near De Leon, in said county. In the introductory part of his petition the plaintiff charges:

"That on or about the 28th day of April, 1928, the plaintiff and defendants entered into a contract whereby defendants employed the plaintiff to do certain labor and services in, and around and about, and in connection with a certain well known as the Ellis Cozby No. 1 in Comanche County, Texas, agreeing to pay him for his said labor and services the sum of $12.00 per day for a portion of said time; and the sum of $6.00 per day for a portion of said time on well known as the H. E. White No. 1 in Comanche County, Texas."

The plaintiff's further allegations proceed in logical order, claiming the sum of $180 for work on the White well, $720 for work on the Cozby well, and acknowledged a credit of $60. The plaintiff also alleged that he was "not aware of whether a partnership existed between the defendants, but if so, he sued in that capacity."

In answer to this petition, Welch and Kelsey jointly filed a general demurrer, and entered a general denial. Later, Welch answered individually by general demurrer, general and special denial, and denied under oath any partnership relation with Kelsey in the drilling of either well. An attachment issued, was levied upon certain properties, and being replevied, the sureties on the bond in that way became parties to this suit.

In due time the cause came on for hearing, and at the conclusion of the trial, which was before the judge without a jury, a judgment was rendered in favor of the plaintiff Myers against the defendant Kelsey and the sureties on his replevy bond for the sum of $165.88 for labor performed on the White well, and it denied Myers any recovery against Welch for work on this well. As to plaintiff's claim for $720 for labor performed on the Cozby well, the court rendered judgment in favor of the plaintiff against both defendants, Kelsey and Welch, and their sureties, for the sum of $704.20. From the judgment as a whole the defendants Kelsey and Welch et al. sued out a writ of error to this court.

In an opinion by this court on April 25, 1930, the judgment of the trial court was affirmed. Thereafter, in response to a motion for rehearing by plaintiffs in error, this court concluded that, since the plaintiff Myers alleged a contract with both Kelsey and Welch as to the White well, and succeeded in proving a contract between himself and Kelsey only for labor there performed, he would not, under the law, be entitled to a judgment as against either of the defendants; and in that respect we altered our original opinion and judgment, and for the reasons stated denied the plaintiff a recovery against either Welch or Kelsey for labor on the White well. We were influenced in this holding by some of the expressions in Stewart & Company v. Gordon, 65 Tex. 344. Consequently, the trial court's judgment relating to recovery for work on the White well was reversed and remanded for a new trial. The judgment under our original opinion was otherwise slightly modified, but on the whole it was affirmed.

The defendant in error, Myers, has now filed a motion for rehearing, and attacks the correctness of our conclusions in disposing of the motion for rehearing by Kelsey et al., plaintiffs in error. This has caused a careful re-examination of the entire record, and we are still earnestly seeking to arrive at a correct conclusion upon the merits of the case in so far as the condition of this record permits.

Upon further consideration of the appeal, we have concluded that, in passing upon plaintiffs in error's motion for a rehearing, we erred in denying Myers a recovery against Kelsey for labor on the White well, and we are now confirmed in the belief that our original disposition of the case in that respect was correct. We therefore withdraw the opinions heretofore written, restate the case more fully, and cite additional authorities compelling the conclusions now entertained.

Plaintiffs in error's first proposition asserts that "allegations by the plaintiff that he entered into a contract with two defendants will not support a judgment on the proof that it was made with only one of them." This proposition is insisted upon most vigorously and it is especially material from the standpoint of Kelsey. As noted, the suit seeks a recovery on two independent contracts. Clearly the plaintiff alleged a contract for labor with both Welch and Kelsey in each instance. We are here particularly considering the judgment for labor on the White well. The evidence undoubtedly establishes the liability of Kelsey for that labor. In that situation we believe the opinion in McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721, rules this case, and that it requires the overruling of said first proposition. That is an opinion by our Supreme Court through Chief Justice Gaines. It was a case in which the plaintiff, Cabiness, sued defendants, Arch McDonald and R. McDonald, to recover the sum of $6,927, claimed to be due him by virtue of an alleged contract with them for services in procuring the sale of timber. The trial was before the court without a jury, and resulted in a judgment in favor of the plaintiff against Arch McDonald, owner, and denied recovery against R. McDonald. The first assignment presented in the Supreme Court was:

"The Court of Civil Appeals in its legal conclusions erred in finding that the plaintiff, in his first amended original petition, had pleaded a contract made with each of the defendants; whereas, the said pleading shows that the contract alleged to have been made was with the defendants jointly, and not with the defendants separately, nor even that it was a joint and several contract, there being no allegations that the alleged contract of plaintiff's employment was made severally with each of the defendants."

After some remarks pertinent to the matter under consideration, our Supreme Court, in its opinion, proceeds as follows:

"If the assignment be sufficiently specific to raise the point, and if it be insisted, that the judgment of the court shows that there was no joint contract, and that therefore there was a variance between the pleading and the proof, the answer is that this does not follow. A plaintiff need not prove all his allegations. It is sufficient if he prove enough of them to make a case. When a plaintiff alleges that two parties to a contract made him a promise, although under the rule at common law as to joint and several contracts, that is a joint promise, yet the allegation necessarily means that each of them promised. Hence we see no good reason why, although he has alleged the promise of the two, he should not recover against one upon proof that he promised, although he may fail to prove the promise of the other. We conclude that there was no error in sustaining under the pleading a judgment against Arch McDonald, which at the same time denied a recovery against his codefendant."

The point decided, as indicated in the excerpt, is substantially, if not identically, the one now considered. Whenever it has arisen in this state, the opinion in the McDonald Case has, since its date, been generally followed. Negociacion, etc., v. Love et al. (Tex. Civ. App.) 220 S. W. 224, 231; Priddy v. Childers (Tex. Civ. App.) 231 S. W. 172; (reversed on different point (Com. App.) 240 S. W. 1107); Priddy v. Childers (Tex. Civ. App.) 248 S. W. 144; Compton v. Jennings Lbr. Co. (Tex, Civ. App.) 266 S. W. 569, 573; Dallas Plumbing Co. v. Harrington (Tex. Civ. App.) 275 S. W. 190; Laurel Oil Co. v. Stockton (Tex Civ. App.) 281 S. W. 1106; Phillips v. Chapman, Com'r (Tex. Civ. App.) 288 S. W. 1100; Golden v. Wilder (Tex. Civ. App.) 4 S.W.(2d) 140; Whitham v. Donovan (Tex. Civ. App.) 11 S.W.(2d) 197; First National Bank of Cleburne v. Graham (Tex. App.) 22 S. W. 1102; Willis v. Morrison, 44 Tex. 27; Congdon v. Monroe, 51 Tex. 109; Keithley v. Seydell, 60 Tex. 78; Baum v. McAfee, 125 S. W. 984.

From the opinion in the Negociacion Case, above, we take the following:

"The appellant also urges that there was a variance between the contract pleaded and that proven, in that it was alleged that the contract of employment was made between Winter on the one part, and Alfonso Madero and the San Enrique Company on the other part, and it was alleged that services were rendered for such parties, and that such parties became indebted to him therefor, while the contracts in evidence on which recovery was had were the contracts of the San Enrique Company alone, and that the services were rendered for the San Enrique Company alone. Under the rules of common-law pleading there would unquestionably be a variance that would prevent recovery under this state of facts. There is a statement in the case of Stewart v. Gordon, 65 Tex. 347, that sustains appellant in this contention, and there are also some other cases that would seem to support this view. Letot v. Edens [Tex. Civ. App.] 49 S. W. 109, and perhaps others. In the case of Keithley v. Seydell, 60 Tex. 82, it is shown that, under our statutes and decisions, the difficulty in the way of...