Martin v. Johnston

• Decision Date: 16 November 1895
• Citation: 33 S.W. 306
• Parties: MARTIN et al. v. JOHNSTON.
• Court: Texas Court of Appeals

33 S.W. 306

MARTIN et al. v. JOHNSTON.

Court of Civil Appeals of Texas.

November 16, 1895.

Appeal from district court, Fannin county; E. D. McClellan, Judge.

Action by James B. Johnston against Martin, Wise & Fitzhugh and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Appellants make the following statement of the nature of this suit, which is accepted as substantially correct by appellee:

Appellee originally brought three suits, one against each of appellants, claiming damages from each of them for substantially the same cause set out in his fourth amended original petition. They were instituted in March, 1887. Subsequently (April 18, 1890), by an order made in the cause against Martin, Wise & Fitzhugh, both of the other causes were consolidated with it. On September 4, 1893, plaintiff (appellee) filed his fourth amended original petition, alleging, in substance: (1) The consolidation above mentioned. (2) That the appellants Martin, Wise & Fitzhugh and Johnson & Long were then, and were when the suit was brought, members, stockholders, officers, and directors of the Lamar Warehouse Company, and that each and all of the defendants would be styled and treated and charged as joint tort feasors in the matters thereinafter set forth; that Lamar Warehouse Company was chartered June 4, 1883, and its business, as expressed in its charter, was to do a general warehouse and commission business, "to receive, store, house, and ship cotton or other goods." (3) That "some time in August, 1883, in order to protect the sellers of cotton, the commissioners' court of Lamar county made, passed, and entered of record an order providing for the appointment of public weigher for Paris and Blossom Prairie, in said county of Lamar, to act until the next general election thereafter, and for the election of four cotton weighers in said county of Lamar, at the general election next thereafter, as provided by law, who should be elected by the qualified voters of said county, thereby establishing the office of public weigher in said county, and made the same elective at the next election thereafter." (4) That on or about November 4, 1884, he was by the legal voters, etc., duly and legally elected to the office of public weigher in and for said county of Lamar, for the term of two years after said election next following, to act as such in the city of Paris, in said county and state; that immediately thereafter he qualified as such public weigher, as the law provides, by taking the oath and giving the bond required by law; that he at once entered upon the discharge of his duties, etc. (5) That he was then and there, and up to the 5th day of November, 1886, ready and willing to weigh all bales of cotton, etc., which were required or were necessary to be weighed in said Lamar county, and which were brought to said city for sale by the owners or producers thereof, or their agents. (6) That immediately after his election and qualification, and on divers days since then, and while he was public weigher as aforesaid, he offered to defendants his services as public weigher, and offered to weigh, by himself and by deputies, all bales of cotton which they, or either of them, might buy or desire weighed; that they each refused to allow him, or any deputy of his, to weigh any cotton for them, or for any person from whom they bought or received cotton. (7) That Martin, Wise & Fitzhugh and Johnson & Long were on November 4, 1883, and have ever since been, engaged in the business of buying cotton in the city of Paris. (8) That from September 1, 1885, to February 1, 1886, Martin, Wise & Fitzhugh so bought in the city of Paris as many as 9,000 bales of cotton, none of which were weighed by the public weigher or deputy public weigher, and were bought from the owners and producers thereof by them, and that all the cotton so bought by them during that time was weighed by P. M. Speairs or A. B. Long, neither of whom was a public weigher or a deputy public weigher, and both of whom were employed and paid by defendants to weigh cotton bought by them from the owners and producers thereof, and delivered at Paris by wagons; and the said Speairs and Long were employed by the defendants to weigh all the cotton bought by them and each of them, and they did so weigh, under said employment, all cotton bought by each and all of the defendants during said time. (9) Substantially the same allegations are made as to the defendants Johnson & Long, except that it is charged that they so bought, etc., 5,000 bales of cotton. (10) That during the time from September 1, 1885, to the last day of January, 1886, the defendants Martin, Wise & Fitzhugh and Johnson & Long and Lamar Warehouse Company, acting together, employed and paid P. M. Speairs and A. B. Long to weigh, and they did weigh, all the bales of cotton bought by either and all of the defendants during the time plaintiff was public weigher aforesaid, and the said P. M. Speairs and A. B. Long, under and by virtue of said employment, did weigh all the cotton purchased by either of the defendants, or which was stored in or passed through the Lamar warehouse; and that said cotton was so weighed without the request of owners thereof, or either of them, and when so weighed was not the property of the defendants, or either of them, nor of the said P. M. Speairs or A. B. Long. (11) That during that time Martin, Wise & Fitzhugh and Johnson & Long bought from the owners and producers thereof: From, to wit, J. F. Fleece, 23 bales; from Dan Wisely, 12 bales; from C. A. DeWitt, 13 bales; from P. M. Estes, 17 bales; from W. Marchbanks, 18 bales; from J. R. Wooldridge, 25 bales. That he is not able to state the precise day on which defendants purchased any of said cotton, nor can he state the names of any other persons from whom defendants, or either of them, bought cotton, except as hereinafter shown, so as to locate the precise time the same was purchased or weighed, or the names of the persons from whom it was bought, or the number of bales bought from each person, for the following reasons, to wit: During all of said time all of the defendants were buying cotton in the city of Paris brought there from all parts of Red River, Lamar Fannin, Delta, Hopkins, and Franklin counties, in Texas, and from the Choctaw and Chickasaw Nations, Ind. T., which constitute a large territory, a very small number of the citizens whereof are known to plaintiff. Besides, there were all the time many other persons buying cotton in Paris, who bought a large number of bales in said market. That he has made diligent inquiry to ascertain the names of the persons from whom said defendants bought said cotton, and the precise date of each purchase. That he has propounded interrogatories, under articles 2239 and 2240 of the Statutes of Texas, to John Martin, Frank Fitzhugh, and T. W. Johnson, in order to discover the number of bales bought by or for them, the names of the persons from whom they bought, and the precise date of each purchase, but has been unable to get the information desired. That he has exhausted all the means at his command to ascertain the facts above referred to, so as to be able to plead them more specifically, but is unable to get the necessary information; and if the defendants, or any of them, have such information (which they ought to have, if any one), they conceal it from plaintiff for the purpose of trying to defeat the ends of justice in this suit, by preventing a fair trial and full investigation into the merits of this case. (12) That he have judgment against the defendants, and each of them, for five dollars a bale for each and every bale of cotton weighed by Speairs and Long, as employés of the defendants, in violation of the statute and of plaintiff, as public weigher, that the evidence may show on the trial of this cause.

September 5, 1893, appellants filed their third amended and third supplemental answers, containing general demurrer and 16 special exceptions to plaintiff's petition, general denial, and special answers. The general demurrer and special exceptions of appellants were each and all overruled. There was a verdict and judgment for plaintiff against all the defendants for $1,825, from which judgment this appeal is prosecuted.

Burdett & Conner and H. D. McDonald, for appellants. Hale & Hale and R. Woolbridge, for appellee.

FINLEY, J. (after stating the facts).

The first assignment of error is made the basis of the proposition that a recovery of a statutory penalty cannot be had upon a petition which fails to set out or specifically refer to the statute creating the penalty. Courts take judicial cognizance of general laws, and, under our system of pleading, it is only necessary to allege the facts upon which the recovery is sought. The provisions of general statutory law governing the rights of the parties upon such a state of facts need not be alleged. Steph. Pl. 347; Chit. Pl. 215; Gould, Pl. c. 3, § 16; 23 Am. & Eng. Enc. Law, pp. 286, 287.

The second, third, fourth, fifth, and sixth assignments of error assail the validity of the acts of the legislature of 1879 and 1883 (Acts 1879, p. 116, and Acts 1883, p. 83), upon several grounds. The propositions urged under these assignments were decided adversely to appellants upon a former appeal in this case, and we do not feel disposed to question the correctness of that decision. Johnson v. Martin, 75 Tex. 33, 12 S. W. 321.

The seventh, eighth, and ninth assignments of error attack the eighth section of the act of 1879, as being violative of both the state and federal constitutions. The eighth section of said act is as follows: "Sec. 8. It shall not be lawful for any factor, commission merchant or any other person or persons to employ any one other than a regularly appointed and qualified public weigher, or his deputy, to weigh any cotton, wool, sugar or hides required to be weighed, sold or offered for sale in any city...