Lamar v. Hildreth

• Decision Date: 08 January 1919
• Docket Number: (No. 1448.)
• Citation: 209 S.W. 167
• Parties: LAMAR et al. v. HILDRETH et al.
• Court: Texas Court of Appeals

209 S.W. 167

LAMAR et al. v. HILDRETH et al.

(No. 1448.)

Court of Civil Appeals of Texas. Amarillo.

January 8, 1919.

On Motion for Rehearing, February 19, 1919.

Appeal from District Court, Cottle County; J. H. Milam, Judge.

Action by Susie Lamar and H. L. Lamar, her husband, against J. H. Hildreth and another. From judgment for defendants, plaintiffs appeal. Affirmed.

J. M. Whatley, of Paducah, and Fires & Diggs, of Childress, for appellants.

J. M. Hawkins, of Hempstead, for appellees.

HUFF, C. J.

Susie Lamar and her husband, H. L. Lamar, brought an action of trespass to try title against J. H. Hildreth and B. H. Bates to recover two certain tracts of land in Cottle county, and at the same time sued out a writ of sequestration, in the affidavit for which they stated that they were entitled to the possession of the premises, and that they feared that the defendants, then in possession, would make use of such possession to injure the property, etc. The defendants, Hildreth and Bates, answered by general denial, and by way of cross-petition that they had not and did not then assert any claim to the freehold in the land described in plaintiffs' petition, but that on or about the last of June or the first of July, 1917, plaintiffs and defendants entered into a valid and binding oral contract or agreement, wherein, for the consideration thereafter mentioned, defendants leased from plaintiffs, for the year 1918, all of the lands described in the petition, consisting of approximately 330 acres of land, and were at the time of the filing of the suit, and are now, entitled to the possession until the expiration of their lease, on the 31st day of December, 1918. They allege that there were 175 acres thereof in cultivation, and the remainder in pasture, and that upon the premises there were two houses which the defendants were to have during the contract. The defendants allege that they obligated and bound themselves to, and would have and are now ready and able to, cultivate all of said 175 acres of land in a good and farmer-like manner, as follows: 125 acres in cotton and 50 acres in corn, agreeing to pay to plaintiffs as the rental thereof the sum of one-fourth of all the cotton raised and one-third of all the feed raised on said premises, and that but for the acts and conduct of the plaintiffs they would have reasonably raised upon said land 30 bales of cotton and 50 tons of feed; that on the 8th day of January, 1918, the plaintiffs breached their contract, and instituted this suit, alleging that they were afraid the defendants would injure said property, and convert the fruits and revenues to their own use and benefit, and executed a bond in the sum of $23,600 for the willful and malicious purpose of evicting defendants from the premises without a hearing, and in willful defiance of their lawful rights, and for the sole purpose of injuring and harassing defendants, and in pursuance of said bond, and in conformity of the law, the clerk of the court issued a writ of sequestration, and placed same in the hands of the sheriff, which instructed him to dispossess defendants, which the sheriff did, by virtue thereof, on or about the 10th day of January, A. D. 1918, during the coldest weather of the year, leaving defendants without a place to go or shelter for themselves or stock; that at the time of the ejection the defendants had about 15 head of stock and about $500 worth of feed; that their feed had to be stacked in the open at great loss and waste; that they had no place to keep their stock, and were compelled to tend and feed them, to their damage in the sum of $100; that by reason of the unlawful ejectment of defendants they were prevented from using and cultivating the land described in plaintiffs' petition during the year 1918, and were deprived of a home for themselves and a pasture for their stock, all of which they have not yet been able to secure, to their damage in the further sum of $1,000. "Defendants would represent to the court that but for the acts and conduct of plaintiffs they would have, in all reasonable probability, raised on said land during the year 1918 30 bales of cotton, three-fourths of which would belong to them; that they would have raised 50 tons of feed, two-thirds of which would have belonged to them; that the market value of said cotton so raised upon said premises would reasonably be worth $100 per bale; that the reasonable market value of the feed that would have been raised upon said premises would be $40 per ton, which would have netted your defendants, after deducting all the expense of planting, cultivating, and gathering the same, $2,000." They allege that since the breach of the contract on the part of the plaintiffs they have made every effort to procure other lands, pasture, and houses to take the place of the land, pasture, and houses that they had rented from the plaintiffs for the year 1918, but without avail. They allege that they had secured 115 acres of sod land upon which one of the defendants was then living, and of a very inferior grade, and inferior to the land rented from the plaintiffs, which would require much more work and produce less by one-half, acre for acre, than the land rented from plaintiffs; that by the exercise of ordinary diligence in cultivating this land it would be impossible for defendants to produce more than $1,000 worth of cotton and feedstuff, after deducting the cost and expense of breaking, cultivating, gathering, etc. They further plead that, by reason of the unlawful act and conduct of the plaintiffs in willfully and maliciously ejecting them from the premises herein mentioned, they have suffered mental and physical anxiety and humiliation to their further damage in the sum of $2,000. The jury found upon special issues submitted to them that the plaintiffs entered into an unconditional rental contract with the defendants for the year 1918; that the defendants' feed was damaged to the amount of $10 by reason of the ejection of the defendants from the premises; and that the defendants were damaged in the sum of $1,000 by reason of their failure to occupy and cultivate the premises of plaintiffs from which they were ejected, and that they were damaged in the sum of $500 by reason of the willful ejection from the premises and in the willful disregard of the defendants' rights by the plaintiffs. The evidence will support a finding by the trial court that the plaintiffs and defendants entered into a rental contract on the terms pleaded by the defendants in their cross-petition.

The first assignment asserts error on the part of the trial court in overruling the appellants' motion for continuance. The motion set up, in effect, that the time for the expiration of the rental contract had not then expired. The application was made May 1, 1918. That the year previous had been a dry one, in which poor crops were made, and that it was then dry and to such an extent that no crops had been planted up to that date, and if the case should be continued until October, 1918, it could then certainly be known what crop had been grown or could have been and its value.

It must be borne in mind that this is not an action for the crops grown on the premises under a rental contract, but is a suit for damages for the breach of a rental contract on shares. It is a rule, now well established and recognized, that upon the breach of a contract the injured party's cause of action at once accrues. Greenwall v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R. A. 302; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; Hearne v. Garrett, 49 Tex. 619. The only question in our mind presented by the motion is whether damages could be assessed for the period of time subsequent to the trial and within the contract period. This, however, would not be grounds for postponement on the part of the appellants. Rental contracts upon shares have a double aspect — one is that of employment by the tenant, and the other is the profits to be derived by the undertaking. In this state it appears to be the rule, where a party sues for the breach of a contract for personal services for a given period, that he will be confined to his damages which have accrued up to the trial. Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975; Louisiana Rio Grande Canal Co. v. Quinn, 161 S. W. 375; and other Court of Civil Appeals cases. On this question, however, there is a conflict of authority by other courts, as in Michigan, Massachusetts, and some other states. See Webb v. De Pew, 152 Mich. 698, 116 N. W. 560, 16 L. R. A. (N. S.) 813, 125 Am. St. Rep. 431. But we believe the rule will not apply where profits are to be derived from a rental contract, which, in effect, makes the undertaking a joint enterprise. A recovery can be had for the breach for the profits that would have been derived from the crops had the contract been continued to the end of the time. Greenwall v. Markowitz, supra, and other cases, which will be later cited. At any rate, we are unwilling to extend the rule as applied to personal service contracts to cases like the present one. We mention this matter at this place, as it is suggested to our mind in the consideration of the motion, and is possibly involved in considering the question of damages, but which is not assigned in terms as lessening the recovery. The application for continuance is not statutory, but was addressed to the discretion of the trial court. Appellants do not show themselves equitably entitled to the continuance. The motion, for the purpose of the continuance assumed a wrongful breach of the contract. The liability for damages which appellants inflicted by breaking their contracts as assessed for the term of the contract is one which they must be taken to have understood when they wrongfully ejected the appellees. If they did not wish to be subjected to such damages, they should have kept the agreement.

The second assignment asserts that the...