McDonald v. Cabiness

• Decision Date: 05 June 1907
• Parties: McDONALD v. CABINESS.
• Court: Texas Supreme Court

102 S.W. 721

McDONALD v. CABINESS.

Supreme Court of Texas.

June 5, 1907.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by F. M. Cabiness against Arch McDonald. From a judgment of the Court of Civil Appeals (98 S. W. 943), affirming a judgment for plaintiff, defendant brings error. Affirmed.

Joe H. Eagle and O. T. Webb, for plaintiff in error. Andrews, Ball & Streetman, for defendant in error.

GAINES, C. J.

The defendant in error sued plaintiff in error, Arch McDonald, and one R. McDonald, to recover the sum of $6,927, claimed to be due him by virtue of an alleged contract for procuring the sale of the timber upon a large body of land. There was also an alternative claim for the value of services rendered in the transaction in the event it should be held that he was not entitled to recover according to the terms of the contract. The case was tried before the court without a jury, and resulted in a judgment in favor of R. McDonald, but against Arch McDonald for the sum of $2,500. This judgment was affirmed by the Court of Civil Appeals.

The application for the writ of error contains but three specifications of error, and to them we are confined. To dispose of them requires no extended statement of the case. Such may be found in the opinion of the Court of Civil Appeals, which is reported in Missouri, K. & T. Ry. Co. v. Hughes, 98 S. W. 415, 17 Tex. Ct. Rep. 318.

The first assignment in this court is that "the Court of Civil Appeals in its legal conclusions erred in finding that the plaintiff, in his first amended original petition, had pleaded a contract made with each of the defendants; whereas, the said pleading shows that the contract alleged to have been made was with the defendants jointly, and not with the defendants separately, nor even that it was a joint and several contract, there being no allegations that the alleged contract of plaintiff's employment was made severally with each of the defendants." We are not prepared to hold that the Court of Civil Appeals erred in its construction of the pleading as to the matter of which complaint is made, but think it unnecessary to decide the point. Under the rule in this state, it is not indispensable to sue all the promisers on a joint promise. The plaintiff may sue one or more, or may dismiss as to one and proceed as to another, even in the appellate court. Miller v. Sullivan, 89 Tex. 480, 35 S. W. 362, and cases there cited. That decision has been followed and approved in the following cases: Bute v. Brainard, 93 Tex. 139, 53 S. W. 1017, and McFarlane v. Howell, 91 Tex. 221, 42 S. W. 853.

If the assignment be sufficiently specific to raise the point, and if it be insisted, that the judgment of the court shows that there was no joint contract, and that therefore there was a variance between the pleading and the proof, the answer is that this does not follow. A plaintiff need not prove all his allegations. It is sufficient if he prove enough of them to make a case. When a plaintiff alleges that two parties to a contract made him a promise, although under the rule at common law as to joint and several contracts, that is a joint promise, yet the allegation necessarily means that each of them promised. Hence we see no good reason why, although he has alleged the promise of the two, he should not recover against one upon proof that he promised, although he may fail to prove the promise of the other. We conclude that there was no error in sustaining under...