Murphy v. Stell

Decision Date01 January 1875
Citation43 Tex. 123
PartiesJOHN C. MURPHY ET AL. v. W. W. STELL ET AL.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Lamar. Tried below before the Hon. R. A. Taylor. The facts are stated in the opinion.

S. B. Maxey, for appellants.

W. B. Wright, for appellee.

MOORE, ASSOCIATE JUSTICE.

This suit was brought by appellee, W. W. Stell, against appellants, to open and correct an account previously closed by note, and to enjoin and restrain the sale of three tracts of land conveyed by said Stell to Sam Bell Maxey, in trust to secure the payment of said note, and also to recover damages alleged to have been sustained by appellee through the wrongful sale by appellants of cotton delivered to them for shipment and sale as further security of appellee's indebtedness to them, on which it is averred a large loss was sustained by reason of the sale of it prior to the time it should have been put upon the market, under the stipulation and agreement entered into by appellants with appellee.

It appears from the record that appellants were merchants doing business in Paris, Lamar county, Texas, in the years 1866 and 1867. The appellee, who was planting cotton in said county during said time, was furnished by them with supplies to carry on his business. On the 29th of June, 1867, appellee executed in favor of appellants, to J. T. Gaines, trustee, a deed of trust on his growing crop of cotton, corn, &c., also including his horses, mules, oxen, wagons, and farming utensils, to secure the sum of $1,635.94, acknowledged to have been already advanced him by appellants, and to secure payment for such goods and money, to be thereafter advanced, as he might need, and as might be agreed on between them, to aid in carrying on his business for the year.

It further appears that appellee, by said deed, agreed to deliver his entire crop of cotton to appellants without delay, after its maturity, (allowing a reasonable time for gathering, ginning, and baling.) And it was also expressly stipulated in said deed that the advances made by appellants should be and remain a lien on appellee's entire crop until the cotton should be sold, when the net proceeds should be applied to the payment of appellants' demand; and if the cotton proved insufficient to pay his debt, and it was not otherwise settled by the first of March, 1868, said deed might be enforced by the sale of said horses, mules, and other property.

By a subsequent agreement between the parties the mules and wagons were sent off and sold for the benefit of appellee Stell and in pursuance of an understanding then had, appellee, on the 22d of February, 1868, executed to appellant, Campbell, his note for the sum of five thousand eight hundred and six dollars and twenty cents, due on or before the first day of January, 1869, bearing interest at the rate of ten per cent. from date until paid. And to secure its payment appellee Stell, joined by his wife, executed to Sam Bell Maxey the deed of trust on three tracts of land, for the cancellation of which this suit was, in part, brought. This note was given by Stell, as insisted by appellants, for the balance due on his account, but was executed, as appellee Stell maintains, with the understanding that all errors in the account should be corrected, and credit allowed him therefor on a subsequent account. There is in said note the following stipulation: “The net proceeds arising from the sale of forty-seven bags of cotton, now in the hands of Murphy & Co. for shipment, when realized, are to be entered as a credit on this note.”

It is alleged by appellee Stell that in consideration of the execution of this deed appellant Campbell promised and agreed that said cotton should not be sold before the 1st of April, 1868. It is not averred, however, that this stipulation was omitted by either accident or mistake or through fraud in the preparation and execution of said note and deed of trust, though there are general and sweeping charges of fraud made against appellants in respect thereto.

It further appears that during the progress of the suit the injunction originally granted on the application of said Stell to restrain the sale by said Maxey under said trust deed of the land therein described having been dissolved, Maxey proceeded to sell the same, as stipulated in said deed, and said Campbell became the purchaser thereof. And said Campbell in an amended answer alleged that he became thereby the owner of said lands, and prayed he might have judgment against said Stell for title and possession of them. To which answer said Stell, in response, alleged that he did not then and at no time had he ever had any title in his own right to said lands; that the same belonged, previous to the commencement of the suit, to his father, by whom they had been subsequently conveyed to him in trust for his (appellee Stell's) minor children, for the better protection of whose interest he prayed the court to appoint a guardian ad litem. Whereupon the court appointed a guardian ad litem for said minors as asked. And said guardian appeared, and in answer to appellants' claim of said lands alleged the same to be the property of said minors.

In reply to these allegations of appellee Stell and of said guardian ad litem, appellants, by further amendment to their answers, averred that appellee was at and previous to the time of the execution of said deed of trust the true and bona fide owner of said lands, under and by virtue of a parol gift from his father, under which he had gone into possession of them, and on the faith and in consideration thereof he had, with the knowledge and approbation of his father, made large and valuable improvements upon them; that a large amount of money advanced him by appellant had been expended in permanent improvement on said land by appellee with the knowledge of his father; and that said deed of gift by his father to said minor children was made at the instance and by the procurement of appellee for the purpose of defrauding appellants.

With this brief and imperfect summary, by way of general outline of the case as presented in the court below, we will proceed to the consideration of such of the legal questions presented by the record as will suffice for its disposition.

Appellants complain that appellee Stell could not go into the entire account, for the purpose of showing errors therein, after it had been settled and closed by note, without any specific errors in the account having been pointed out in the petition; and that there was no such direct and specific averments of mistake in the account, or fraud in the preparation and execution of the note and deeds of trust by which the settlement of the account and agreement between the parties concerning said cotton was consummated, as authorized the admission of parol evidence to show that the items of the account had not been finally passed upon and adjusted, or to show that appellants had agreed to withhold said cotton from sale until the 1st of April, as insisted by said Stell. To this it is sufficient to say that no exceptions of this character were taken to the petition. Nor was any objection made to the evidence introduced on the trial of the case in support of appellee's action as alleged and set up in his original and amended petition. No complaint of this kind appears to have been suggested to the court until after the case had gone to the jury. Evidently then, if the result fully and fairly reached the merits of the case, and the ends of justice had been attained, although by an irregular and erroneous course of procedure, appellants could not be now heard to complain.

To determine whether the judgment should be reversed it is only necessary to ascertain whether the verdict is supported by the evidence, or whether the charge of the court was calculated to do appellants any injury. As essential to the proper determination of these questions, it is important to ascertain, first, the amount of deductions which appellee is entitled to claim on the account for which his note was given; second, for what amount was appellants liable to him on the cotton placed in their hands for shipment and sale.

As there is a manifest and palpable conflict in the testimony bearing on these points, in determining whether such injustice has been done to appellants by the verdict as will warrant a reversal of the judgment, appellee is certainly entitled to the benefit of all the facts which are fairly and reasonably established by the testimony in the record tending most strongly to support the judgment. Considering the matter from this stand-point, it must be conceded that there was an error of $197.77 in the account, over and above those allowed by appellants, for which appellee should have had credit, as shown by the testimony of the accountant to whom, at his instance, it was referred for examination. If, in addition thereto, appellee is credited with the items he points out as erroneous in his testimony, he would be entitled to a further credit of one or two hundred dollars more. In no view of the evidence, however, can we see that he can claim credit for errors and overcharges in the account of...

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