McAuley v. Harris

• Decision Date: 30 October 1888
• Citation: 9 S.W. 679
• Parties: McAULEY <I>et al.</I> v. HARRIS.
• Court: Texas Supreme Court

9 S.W. 679

McAULEY et al. v. HARRIS.

Supreme Court of Texas.

October 30, 1888.

Commissioners' decision. Appeal from district court, Tom Green county.

This suit was brought by the plaintiff, L. B. Harris, against the defendants, McAuley & Clampitt, upon the following contract: "The State of Texas, Tom Green County. Know all men by these presents, that L. B. Harris, party of the first part, and J. W. Clampitt and Wm. McAuley, parties of the second part, have this day entered into the following agreement, to-wit: The said Harris agrees that the said McAuley & Clampitt may put in his pasture, on the Colorado river, in Tom Green county, Tex., about three thousand head of stock cattle, and there to remain from Oct. 10, 1884, to six months thereafter, requiring that all calves of the above stock shall be branded in the said McAuley & Clampitt brand before they are put in the pasture, and the said L. B. Harris is to receive from the said McAuley & Clampitt for pasturing the same for said time $1.25 per head for the entire number of cattle counted at the end of six months from Oct. 10, 1884, excepting any and all calves that have come or may have come since June, 1884. It is hereby agreed by both parties hereto that, if the said above cattle remain in the pasture premises of the said Harris, McAuley & Clampitt are to pay same proportion both as to price per head and time thereafter they remain in the premises. The sum accrued for such pasturage shall be due and payable on delivery of the cattle from the pasture. It is further understood and agreed that, should the cattle not be delivered out of the pasture promptly at April 10, 1885, that all calves under six and one-half months are not to be counted. And Harris agrees not to overstock the pasture at any time the cattle remain therein. Dated 4th Oct., 1884." The evidence was quite voluminous, and the principal errors assigned relate to the instructions of the court and rulings on the admission of testimony. The court, after explaining the nature of the suit and the contract sued on, instructed the jury as follows: "You are instructed that, if you find from the evidence that the defendants, McAuley & Clampitt, put cattle into the pasture of L. B. Harris, and that Harris did not overstock said pasture, you will return a verdict for plaintiff. If you find for plaintiff, and that the cattle remained six months in the pasture, and that they were counted when turned out of the pasture, (or, if not counted, that the failure to count them did not arise from the willful acts of either of the defendants,) you will assess the damages by multiplying the number of cattle turned out (exclusive of calves dropped since June, 1884) by one and one-fourth dollars, together with interest thereon from the date of turning out to this time, at the rate of eight per cent. per annum. If the cattle remained more than six months in said pasture you will find an additional sum in favor of plaintiff, equal to the product of the number of cattle turned out, excluding all under six and a half months old, multiplied by a number bearing the same proportion to one and a quarter dollars that the time between the 10th of April, 1885, and the date of turning out bears to six months, with like interest as above. As an illustration of the rule herein given to determine the amount of additional damages in favor of plaintiff, (if you find any,) suppose the cattle (excluding those under six and one-half months) turned out numbered one thousand, and that they had remained one month after the 10th of April, 1885; then, as one month is one-sixth of six months, you will multiply the one thousand by one-sixth (or 20 5-6 cents) of one dollar and a quarter, and the same rule would obtain, whatever the number of cattle or length of time after April 10, 1885, you may find from the evidence. And in this connection you are instructed that, if you find from the evidence that the cattle of defendants turned out of said pasture were not counted at that time for the purpose of ascertaining the amount due plaintiff under his contract, and if you find that the failure to so count them was the result of the voluntary action of either of the defendants, in such case, unless the evidence otherwise clearly shows the number of cattle turned out, you will estimate them at the highest number which the evidence shows to have been put in said pasture." The appellants complain that there was error in this charge, wherein it attempts to give the method of computing the amount due plaintiff for pasturage, as such charge is on the weight of evidence, intimates to the jury the opinion of the court upon the facts, and is hypothetical and argumentative. The next clause of the court's charge to the one above given is: "If the plaintiff overstocked his pasture, you will return a verdict for defendants, and if, by reason of such overstocking, defendants lost any of their cattle, you will return a verdict in their favor for the value of the cattle so lost, together with interest thereon from the date of the loss to this time, at the rate of 8 per cent. per annum." Appellants' fourth assignment of error complains of the first section of the charge, because it does not affirmatively instruct the jury to find for plaintiff the pasturage for the true and actual number of cattle turned out, but charges defendants with the highest number turned in the pasture, assuming that the voluntary act of defendants was wrongful, and, by using the words "clearly" and "voluntary" imposes burdens on defendants not included in the contract; and the charge is on the weight of the evidence. Defendants' second assignment of error: "The court erred in its charge when it attempts to take from the jury the right to determine what was meant and intended by the parties to said contract wherein the said Harris agreed not to overstock said pasture at any time said cattle may remain in said pasture." The charge of the court complained of is as follows, and it immediately succeeds the charge that the jury will find for defendants if the plaintiff overstocked the pasture, to-wit: "In this connection you are instructed that, if defendants, or either of them, made an examination of the pasture, and ascertained its contents, and then made the contract to put their cattle therein, the plaintiff was entitled to allow his stock in the pasture on the 10th of October, 1884, to remain therein, and such action would not render him guilty of overstocking the pasture."

The verdict was for plaintiff for $2,868, and judgment was rendered thereon. Defendant appeals.

Neill, Freidrich and Fisher, for appellants.

COLLARD, J.

The court gave the jury a rule of computing the amount due plaintiff, Harris, in case their finding should be for him, substantially according to the terms of the contract. The rule furnished by the contract was $1.25 per head up to April 10, 1885, for the number of cattle turned out of the pasture, excluding calves...