Munger Oil & Cotton Co. v. Beckham

• Decision Date: 02 March 1921
• Docket Number: (No. 213-3321.)
• Citation: 228 S.W. 128
• Court: Texas Supreme Court
• Parties: MUNGER OIL & COTTON CO. v. BECKHAM.

228 S.W. 128

MUNGER OIL & COTTON CO. v. BECKHAM.

(No. 213-3321.)

Commission of Appeals of Texas, Section B.

March 2, 1921.

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

Action by J. J. Beckham against the Munger Oil & Cotton Company. Judgment for defendant reformed so as to be one of dismissal, and as reformed affirmed by Court of Civil Appeals (209 S. W. 186), and plaintiff brings error. Judgment of Court of Civil Appeals reversed and that of district court affirmed.

C. S. Bradley, of Groesbeck, A. B. Rennolds, of Mexia, and Coke & Coke, of Dallas, for plaintiff in error.

W. T. Jackson, of Groesbeck, and O. Kennedy, of Mexia, for defendant in error.

POWELL, J.

This is an action in damages instituted in the district court of Limestone county, Tex., by J. J. Beckham against the Munger Oil & Cotton Company, based upon the alleged breach of a contract entered into by and between said parties on April 1, 1913. Beckham was the owner of some 800 acres of farm land, nearly all of which was in cultivation. He had operated a gin himself on said plantation. In close proximity was situated a blacksmith shop, a store, and a residence for the storekeeper. His gin burned. Rather than rebuild himself, he made a contract with plaintiff in error, under which the latter agreed to build a gin on the gin tract belonging to Beckham. The latter, on the same day, executed a deed to the former, conveying several acres as a ginsite, and accepting $800 for the execution of said deed. The gin was erected and operated for two years by the Munger Company. Finding its further operation unprofitable, the gin was removed from Beckham's land and its operation there discontinued.

Thereupon Beckham sued the Munger Company, alleging that, under his contract with the latter, the latter was obligated to continue operating said gin for a period of 15 years, and that the company had ceased operation 13 years before it had a right so to do. Of said 13 years, about two and a half years had already passed when the suit was called for trial in September, 1917. Beckham alleged that the said contract of April, 1913, expressly provided for 15 years' operation of the gin; that if he was mistaken in that contention, it was the intention of the parties that the contract should so provide, and, if it did not so provide, it was due to a mutual mistake; that if he was still further mistaken in said last allegation, then the contract certainly provided that the Munger Company should operate the said gin a reasonable time. Attached to the petition was a copy of said contract, which speaks for itself.

On October 21, 1914, Beckham deeded to the Munger Company a residence lot near the gin for the use of the gin manager.

In his petition Beckham specified many elements of damage which he had sustained because of the breach of said contract. They were:

(1) Loss of rental on blacksmith shop for thirteen years at $50 per year. Beckham pleaded that his inability to rent said shop was due to the removal of the gin. (2) Loss of value of waste from the gin, which would have fertilized his farm and been worth $50 per year thereto for thirteen years. (3) Loss of an opportunity to sell 200 cords of wood to the gin each year at an annual profit of $100 for thirteen years. (4) Loss of rental on store and residence for thirteen years, at $180 per annum. (5) Loss of $10 per acre in value of 800 acres of land, due to the fact that only a poor class of tenants could be obtained in the absence of a gin. (6) Loss due to the extra expense of $1.50 per bale for carrying his average annual crop of 300 bales of cotton to the next nearest gin. He asked for $450 each year for thirteen years. (7) Defendant in error asked for cancellation of his deeds conveying to the Munger Company the gin and residence sites.

In the alternative, Beckham prayed for damages as follows:

(1) $10,000 required to erect a gin on said site himself. (2) $19,500, representing an annual loss of $1,500 in the operation of said gin for thirteen years, after he had it erected and in operation. (3) $5,000 depreciation during said period of time in the value of said new gin.

The plaintiff in error answered by general and special demurrers and general denial, together with certain other defensive pleas. Among the latter was the paragraph setting up the reconveyance of the residence and gin sites to Beckham, and a willingness of the plaintiff in error for Beckham to build his own gin on said premises at his pleasure. Plaintiff in error further pleaded that if there was any mutual mistake in the failure of the contract to provide for the operation of the gin for 15 years, the said mistake could not be corrected for the reason that the pleading which first set up said contention was filed more than 4 years after the contract was made. There was no prayer for affirmative relief and nothing by way of cross-action.

The judgment of the trial court shows that the case was regularly reached on the docket and called for trial on September 12, 1917, when came the plaintiff by his attorneys and announced ready for trial, as did the defendant, through its attorneys. Thereupon the court took up for consideration the various special exceptions in defendant's answer. The defendant had directed an exception to each element of damage alleged by plaintiff, said exceptions in the main being based upon the ground that said damages were not in the contemplation of the parties to the contract and were remote and speculative. The court sustained them all, except the following: He ruled that Beckham would be allowed to introduce proof of losses, if any, sustained, with reference to three items, between the time the operation of the gin was discontinued and the case was called for trial. The three items were:

Diminution in rental value of the blacksmith shop; diminution in rental value of storehouse and residence; increased cost of hauling cotton from Beckham's farm to the nearest gin.

The effect of the court's ruling upon said exceptions was that Beckham was not entitled to recover anything for damages that might arise after the trial, and for none that had arisen prior to the trial, except with reference to the items just above set out. Beckham's counsel excepted to the ruling of the court on these exceptions, and then announced that he would not offer any testimony. The court then rendered judgment for the defendant. The defendant in error excepted to the judgment of the court as a whole, and gave notice of appeal. In due time he assigned several errors, filing same in the trial court, and urging the same in the Court of Civil Appeals. All of said assignments of error assailed the action of the trial court in its rulings upon the exceptions. Not one of the assignments objected to the form of the judgment entered by the trial court, and no contention was made at any time, or anywhere, by Beckham that the trial court should have dismissed the case when defendant in error refused to proceed, and not render judgment for the Munger Company. The Court of Civil Appeals reformed the judgment of the trial court, setting aside the judgment for plaintiff in error, and dismissed the case. Said court held that the only proper judgment, under the circumstances, was one of dismissal, and that, although no such error had been assigned, the court itself would treat it as an error apparent of record and proceed accordingly.

The Court of Civil Appeals further held that, in refusing to proceed with that part of the case left open by the trial court, Beckham had abandoned his case and was not entitled to an appeal. Therefore the court refused to consider his assignments of error attacking the action of the trial court sustaining various exceptions urged by the Munger Company. The opinion of the Court of Civil Appeals is published in 209 S. W. 186.

Beckham filed a motion for rehearing in the Court of Civil Appeals, as did the Munger Company. Even in this motion Beckham still did not complain of the form of the trial court's judgment. The Court of Civil Appeals in due time overruled both motions for rehearing.

The plaintiff in error filed application in the Supreme Court for writ of error attacking the action of the Court of Civil Appeals in reforming the judgment of the trial court and dismissing the case. The defendant in error did not apply to the Supreme Court for writ of error attacking the failure of the Court of Civil Appeals to consider his assignments of error. Nor has he filed any argument or additional brief in the Supreme Court.

We think the Court of Civil Appeals erred in holding that, under the circumstances of this case, the only judgment the trial court could have properly entered was one of dismissal. On the contrary, we think the court entered the only proper judgment under the circumstances. We are not unmindful of several decisions of the appellate courts of Texas which seem to sustain the ruling of the Court of Civil Appeals. Before proceeding to discuss the reason for our view of this matter, a brief review of the authorities may be helpful.

Trial courts have frequently dismissed cases for want of prosecution when regularly called on the docket and no one appeared to prosecute them. This practice was approved by the Supreme Court in the case of Houston v. Jennings, 12 Tex. 487. In that case neither party appeared, and an order of dismissal was the only proper one. The writer is not so sure that a dismissal for want of prosecution would be proper when the case is regularly called and either party is present, demanding a trial. In fact, in spite of the authorities apparently holding otherwise, I seriously doubt it. It seems to me that all parties to a suit must be required to exercise diligence and watch their cases and attend upon the courts. But the authority above quoted is not in point in the case at bar, for here both parties were present and had announced ready for trial.

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