Locke v. Wallingford

• Decision Date: 05 November 1924
• Docket Number: (No. 2380.)
• Citation: 265 S.W. 1086
• Parties: LOCKE et al. v. WALLINGFORD et al.
• Court: Texas Court of Appeals

265 S.W. 1086

LOCKE et al. v. WALLINGFORD et al.

(No. 2380.)

Court of Civil Appeals of Texas. Amarillo.

November 5, 1924.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by R. I. Wallingford and another against Newt Locke and another. From judgment for plaintiffs, defendants appeal. Reversed and remanded.

Reeder & Reeder, of Amarillo, for appellants.

Barrett & Works, of Amarillo, for appellees.

HALL, C. J.

Roberts-Troxell Machinery Company, a partnership composed of George L. Roberts and J. A. Troxell, leased a certain farm for the year 1921 from Newt Locke and C. C. Stockstill. The appellees, R. I. Wallingford and A. C. Dunlop, as the assignees of Roberts-Troxell Machinery Company, filed this suit against the appellants, alleging the lease of said land by Roberts-Troxell Company, and that said company cultivated and harvested a crop of wheat from the leased premises; that under the lease contract appellants were entitled to one-fourth of all the wheat grown upon the said land delivered in the stack or shock, one-fourth of the threshing expenses to be paid by the defendants; that 11,400 bushels of wheat were grown upon the leased premises during said year of which amount defendants were entitled to 2,850 bushels, subject to the payment by them of their one-fourth of threshing expenses; that, in addition to said rent, the defendants took possession of and converted 756 bushels of wheat more than belonged to them, which at that time was worth $1 per bushel. Plaintiffs further allege that their assignors paid the expenses of threshing the entire wheat crop, for which the defendants owed them for threshing their one-fourth interest at the rate of 10 cents per bushel, or $285; that said wheat crop was harvested, threshed, and disposed of during the months of July and August, 1921, and that at the special instance and request of defendants plaintiffs' assignors furnished and used for them, in harvesting said grain and other work, a tractor for 21½ days, for which defendants agreed to pay $40 per day, or $860, and also agreed to pay the wages of a capable man who operated the said tractor for said time at $7 per day, or total wages of $150.50; that during the fall of 1921 plaintiffs' assignors, in accordance with an agreement between the parties, plowed and prepared for planting 232 acres of land at an agreed price of $2.25 per acre, or $522 total; that during the harvest season of said year defendants harvested for plaintiffs assignors, by using a combine harvester, 135 acres of wheat at the agreed price of $4 per acre, aggregating $540; that the defendants paid for fuel used in doing said work $163.83, and furnished three 3-foot extensions for said harvester at an agreed price of $150, making a total credit of $853.84, to which defendants are entitled, leaving a balance of $1,590.26 due and owing by defendants to plaintiffs' assignors on or before October 1, 1921, together with interest. It is alleged that Roberts died intestate in March, 1922, and that afterwards Troxell, as the surviving member of the firm, conveyed for a valuable consideration all of the right, title, and interest in said partnership to the appellees, Wallingford and Dunlop.

Locke and Stockstill answered by general demurrer and general denial, and specially alleged in substance that there was grown on said section of land for the year 1921, 12,208 bushels of wheat; that George L. Roberts received and sold for his own account 7,800 bushels, and retained for his own use as seed wheat 1,280 bushels, and that appellants received and sold for their account 3,128 bushels, being 76 bushels more than their one-fourth of the crop to which they were entitled as rents; that the appellants used a tractor belonging to Roberts for 21½ days, at an agreed price of $20 per day; that Roberts contracted to plow 320 acres of land at $1.75 per acre, and did plow and break 174.5 acres, and no more; that the appellants, using a combine, cut 237 acres of wheat for Roberts, at an agreed price of $5 per acre, and at the request of Roberts appellants paid the Pierce Oil Corporation for him $163.83; that appellants sold Roberts oil and gasoline of the value of $460.81, and also three 3-foot extensions for combine at an agreed price of $150; that the defendants were, by reason of all the transactions and agreements, due the appellants' assignor Roberts the following items: 76 bushels of wheat, at $1 per bushel, $76; 3,052 bushels of wheat threshed for defendants by Roberts, at $.10 per bushel, $305.20; for use of tractor belonging to Roberts 21½ days, at the agreed price of $20 per day, $430; breaking 174.5 acres of land by Roberts, at the agreed price of $1.75 per acre, $305.35 — or a total sum of $1,116.55; that in virtue of the same transactions the assignors of the appellees are due the appellants $1,185 for cutting and threshing with a combine harvester 233 acres of wheat at the agreed price of $5 per acre, $163.83 which the appellants paid the Pierce Oil Corporation at the request, and for the benefit of Roberts, $60.81 for lubricating oil and gasoline sold and delivered to Roberts by appellants, three 3-foot extensions for separator sold and delivered by defendants to Roberts at the agreed price of $150 — the total amount due by appellees' assignors to defendants being $1,559.64. Wherefore there is due the appellants a balance of $443.09.

The case was submitted to the jury upon special issues which, with the answers thereto, are as follows:

"No. 1. How much wheat was harvested in the summer of 1921 from the section of land involved in this suit? Answer: 10,358 bushels.

"No. 2. How much of the wheat harvested from said section of land did George L. Roberts sell and use? Answer: 7,230 bushels.

"No. 3. How much of the wheat harvested from said land did defendants Locke and Stockstill get? Answer: 3,128 bushels.

"No. 4. What was the price per day agreed to be charged and paid for the use of the Roberts tractor in harvesting wheat by defendants during the summer of 1921? Answer: $40 per day.

"No. 5. How much land did Roberts break or have broken for defendants during the fall of 1921? Answer: 217 acres.

"No. 6. How many acres of Roberts' wheat was harvested by defendants' combine during the season of 1921? Answer: 185 acres.

"No. 7. What wages per day did defendants agree to pay a man to run the Roberts tractor? Answer: $7 per day.

"No. 8. Did George L. Roberts act for the partnership of Roberts-Troxell Machinery Company in the transactions with defendants involved in this suit? Answer: Yes."

Based upon the verdict, the court rendered a judgment for the appellees Wallingford and Dunlop, against the appellants, Locke and Stockstill, for the sum of $1,054.91, and interest at 6 per cent. from the 12th day of March, 1924. The first assignment of error is based upon the court's action in admitting in evidence 71 scale tickets; these tickets were upon blank forms bearing the heading "Great West Mill & Elevator Company"; they were in the usual form, differing only as to numbers, dates, and the gross tare and net weights; 42 of them were signed "J. P. Hodges, Weigher," and 29 were signed "Ted Ratcliff, Weigher." The names of various parties were written upon the backs of the tickets. The 71 tickets showed that an aggregate of 6,253 bushels of wheat had been weighed by Hodges and Ratcliff. The bill of exception taken to the admission in evidence of these tickets shows that while the witness William H. Chase was upon the stand, he testified with reference to them; that he first saw the tickets in the office of Roberts-Troxell Machinery Company during the crop season of 1921. The substance of his testimony with reference to the origin, purpose, and effect of the tickets is that trucks hauling wheat from the farms to the elevator would go out to the farms in the morning and haul whatever loads they brought to town, and that the truck drivers would bring the tickets in to him, as the bookkeeper of Roberts-Troxell Company in the evening. He stated that he marked at the top of each ticket where the wheat came from, and that the word "Nabors" found written in the right-hand corner of the tickets was in his handwriting; that the word "Nabors" was on all of the tickets, except the tickets which represented the wheat hauled by Frank Hays; that he knew the tickets upon which he had written the word "Nabors" represented wheat raised upon the Nabors section, the land in controversy, because the truck drivers who brought him the tickets, and who signed their names upon the tickets, respectively, told him that the wheat was from the Nabors section. The witness admitted that wheat was being harvested from other sections at the same time. The tickets that have not the name "Nabors" written on them were hauled by Frank Hays' employees. Hays had the contract to haul wheat; his men hauled it. Hays turned the tickets over to him within a day or two after the hauling was done; that other hauling of wheat from other farms was going on at the time the tickets from the Nabors section were being turned in; that it is hard to tell what names are on two of the tickets. Hays had four different drivers. Hodges and Ratcliff were weighers for the Great West Mill & Elevator Company. The substance of the appellants' objection to the tickets is that they do not show that the wheat which they represent was a part of the wheat in controversy, and are purely hearsay evidence; that they do not show that they were issued by the Great West Mill & Elevator Company; that it is not shown that the...