Martin v. Slimp

• Decision Date: 31 May 1911
• Citation: 138 S.W. 451
• Parties: MARTIN v. SLIMP et al.
• Court: Texas Court of Appeals

138 S.W. 451

MARTIN v. SLIMP et al.

Court of Civil Appeals of Texas. San Antonio.

May 31, 1911.

Appeal from District Court, Carson County; F. P. Greever, Judge.

Action by Roy Slimp and another against Charles Martin and another. From a judgment for plaintiffs against defendant Martin, he appeals. Reversed and rendered.

Lumpkin, Merrill & Lumpkin, for appellant. L. C. Barrett and J. Marvin Jones, for appellees.

FLY, J.

Roy Slimp and Will Randall sued appellant and N. A. Pierce in a justice's court on a verified account for $150, on which was credited a payment by Pierce of $75. The cause was tried in the justice's court, and the plaintiffs obtained a judgment against appellant for $75, and on appeal to the district court a like judgment was obtained.

In the justice's court appellant and Pierce were alleged to be partners. Appellant under oath denied the partnership, and also denied any authority upon the part of Pierce to bind him for the payment of any sum. In the district court there was filed by Slimp and Randall what is denominated an "amended statement of cause of action," in which it was alleged that plaintiffs, at the special instance, and request of N. A. Pierce, threshed about 1,560 bushels of wheat at the price of 5 cents a bushel and 2,400 bushels at 3 cents a bushel, the total being $150; that Pierce paid $75 on the amount, but refused to pay the other part of it, claiming that Martin owed the same. To charge appellant, plaintiffs alleged that "one-half of said oats and wheat was the property of the said Martin, and that said Martin received and accepted said work of plaintiffs in doing said threshing, and is legally bound to pay the same at the reasonable value thereof, which was and is reasonably worth the said sum of $150."

Roy Slimp, for the plaintiffs, testified that their contract was with Pierce, who paid half the price and asked the plaintiffs to make out a bill against Martin for the balance. When the bill was presented to appellant, he stated that under his contract with Pierce the latter would have to pay the bill. Slimp stated: "I never heard Mr. Martin's name mentioned in connection with the threshing of the grain until after the grain had been threshed and we made out our bill against the defendant Pierce." Martin testified: "I never hired the plaintiffs to do the threshing on my place, which was occupied by the defendant Pierce, and I never instructed the defendant Pierce to hire them for me, or any one else, and at no time did I ever agree to pay plaintiffs any sum of money whatever for doing the threshing for the defendant Pierce. The defendant Pierce was not my agent, and...