Kerr v. Blair

• Decision Date: 06 November 1907
• Citation: 105 S.W. 548
• Parties: KERR et al. v. BLAIR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

105 S.W. 548

KERR et al. v. BLAIR.^*

Court of Civil Appeals of Texas.

November 6, 1907.

Rehearing Denied December 4, 1907.

Appeal from District Court, Matagorda County; Wells Thompson, Judge.

Action by W. L. Blair against J. A. Kerr and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Gaines & Corbett, for appellants. J. W. Conger and W. S. Holman, for appellee.

JAMES, C. J.

W. L. Blair alleged: That on or about the month of September, 1905, Kerr Bros. agreed with him to thresh plaintiff's entire crop of rice, which consisted of 200 acres, for the consideration of 30 cents per sack for each sack of rice which belonged to plaintiff and 15 cents for each sack that belonged to defendants. That defendants were the landlords of plaintiff, and entitled to half of the crop on the premises for the year 1905. That defendants began threshing the crop on or about October 14, 1905, and, after threshing that part which was planted in Honduras rice, and after threshing 482 sacks of Japan rice, they moved their outfit away, and began threshing elsewhere in the neighborhood, leaving the threshing of the crop planted in Japan rice unfinished. That plaintiff protested against this, but defendants paid no attention to him, and negligently permitted the Japan rice to be destroyed by ducks, birds, cattle, and bad weather; and, plaintiff realizing this damage, "had the opportunity to and partially contracted for another threshing outfit to thresh same, but defendants, learning the fact that plaintiff was about to procure another outfit, by false and fraudulent representations, induced plaintiff not to contract with any other rice threshing outfit, but assured plaintiff that they would at once go into the field of plaintiff and finish threshing his rice according to their contract," but notwithstanding they ceased threshing the crop of plaintiff, and threshed the entire crop of Kerr Bros. and of others in the vicinity, and allowed his to remain unthreshed and become destroyed. That, had defendants performed their contract, "plaintiff would have received 2,200 sacks of rice on the whole of said rice crop which was unthreshed, and that one-half of said 2,200 sacks would have been the share of plaintiff, which share would have amounted to 1,100 sacks of rice, 162 pounds each, but, instead of receiving 2,200 sacks of rice, plaintiff only received 948 sacks off the entire remaining part of his Japan rice, 478 sacks of which was the property of plaintiff. Therefore plaintiff lost 628 sacks of rice by the negligence, carelessness, and wantonness of defendants in not complying with their contract. Plaintiff avers that said 628 sacks of rice of 162 pounds to each sack would have been reasonably worth the sum of $4 per sack, or the sum of $2,512, and that the expense in threshing said 628 sacks would have amounted to the sum of $282.60, and that the expense of sacking said rice would have amounted to the sum of $62.80, and that the expense of hauling said rice would have amounted to the sum of $62.80, and, after deducting said expense from the entire amount, plaintiff's net damage would have amounted to the sum of $2,103.80." Plaintiff alleged also: "That the expenses above set forth and the charges made are the prices which obtained in the vicinity of said rice crop during the years 1905 and 1906." We have quoted from the petition in order that we may be able to consider the many exceptions to the petition. It is not deemed necessary to state here the pleadings of the defendants. There was a verdict for plaintiff for $500.

The first assignment of error complains of the overruling of a general demurrer to the petition. The points made in the brief are not such as would be reached by a general demurrer; but, as there was a special demurrer, raising practically the same objections, we will consider together the first and the sixth assignments. It would clearly have been useless and unnecessary for the petition to allege how many of the 200 acres were planted in Honduras and how many in Japan rice. Another ground of exception is "that, the petition failing to allege any value of the rice destroyed at the time and place of its destruction, or any facts from which to deduce said value with any definitiveness or accuracy, one of the necessary elements of the cause of action is not stated." Another ground is that the petition fails to allege that the amounts charged for threshing, sacking, and hauling were either necessary or reasonable. We dispose of this last ground by referring to the fact that the petition alleges: "That the expenses above set forth, and the charges made, are the prices which obtained in the vicinity of said rice crop during the years 1905 and 1906." If they were the prices that obtained, it was not necessary to allege that they were necessary or reasonable. As to the other ground, it is contended by appellant that the allegation just quoted had no reference to the value of the rice itself, and therefore the following special exception to the petition should have been sustaind, viz.: That the petition nowhere shows "what the rice was worth at the time of its destruction and because there is no market value shown, nor no proper predicate laid for the establishment of a market value." The allegation was that the rice which defendants left unthreshed would have been reasonably worth $4 per sack. This meant that this was its reasonable value when threshed as defendants had contracted to do. In our opinion, it was not necessary for plaintiff to plead the means or the evidence by which he was to establish that such was its value. Evidence that this was its market value in that vicinity would substantiate the allegation. The substance of the petition is that plaintiff had, by the breach of the contract, been damaged in the sum of $4 per sack for 628 sacks, less sums named as the expense of threshing, sacking, and hauling. It is not necessary to go further than this. Market values are simply evidence of the damages, and need not be alleged. City of San Antonio v. Pizzini (Tex. Civ. App.) 58 S. W. 635. We overrule the first and sixth assignments.

The second and fourth assignments allege matters which seem to us to merit no discussion. The assignments are overruled.

The third assignment refers to an exception to the allegation "that defendants, learning of the fact that plaintiff was about to procure another outfit, by false and fraudulent representations, induced plaintiff not to contract with any other rice threshing outfit, but assured plaintiff," etc., upon the ground that the same does not show where such representations were made, or by whom. This particular reason for objection has no merit. The time would appear to have been indicated, and the persons were clearly stated to have been the defendants.

We overrule the fifth assignment of error. The portion of the petition excepted to stated facts, and not conclusions.

The seventh is based mainly upon the mistaken idea that the allegation "that the 628 sacks would have been reasonably worth the sum of $4 per sack, or the sum of $2,512," was an allegation of value at a future and uncertain time. The evident meaning of the pleader was that such would have been its value as it was if threshed. Railway v. Bayliss, 62 Tex. 573.

The ninth assignment is that the court erred in refusing to instruct the jury, after plaintiff had rested his case, to return a verdict for the defendants, upon the motion made by defendants. Appellee insists that this action of the court cannot be assigned as error, and that we should...