Noska v. Mills
| Decision Date | 27 April 1940 |
| Docket Number | No. 12882.,12882. |
| Citation | 141 S.W.2d 429 |
| Parties | NOSKA v. MILLS. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law No. 2, Dallas County; Owen George, Judge.
Suit by Leo C. Mills against Frank Noska for an amount allegedly due to the plaintiff under a stock-raising agreement, and for foreclosure of an alleged landlord's lien on cattle and hogs and in the alternative for one-half of the stock and money judgment and for general relief, wherein defendant filed a cross-action. From an adverse judgment, the defendant appeals
Reversed and remanded for further proceedings.
Edgar P. Hahey and A. H. Dudek, both of Dallas, for appellant.
Francis M. Chaney, of Dallas, for appellee.
Leo C. Mills sued Frank Noska, alleging that, on or about January 1, 1928, he rented to the defendant, for one year, fifty acres of land located about nine miles north of the City of Dallas, in Dallas County, Texas, agreeing to furnish everything except the labor, the defendant agreeing to furnish the labor; the parties to share equally the produce from the farm; also entered into a stock-raising agreement, to the effect that, plaintiff would furnish certain stock to be placed upon the farm and cared for by the defendant, the increase to be shared equally; that plaintiff furnished defendant one Jersey cow and several head of hogs (the number not mentioned); that, from year to year, the oral contract was renewed and the stock of the preceding year were furnished the defendant for milk, butter, meat, as food, and use in making the crop; that no division of the stock raised on the farm was ever made, and that, at the end of the year 1938, defendant had on the farm—raised under the alleged agreement —five Jersey cows, of the value of $40 each; two sows, of the value of $20 each; seven pigs, of the value of $5 each, and two calves of the value of $20 each, aggregating a total value of $315; that at the end of the year 1938, plaintiff made demand upon the defendant for half of said stock, which was refused, and the defendant still refuses to deliver to plaintiff one-half of the stock, to his damage in the sum of $157.50. Plaintiff also alleged that, for the year 1937, the federal government, under the provisions of an Act of the Congress, commonly called the "AAA", 7 U.S.C.A. § 601 et seq., paid to the defendant, as cotton subsidy, $81.11, of which plaintiff was entitled to one-half, but that the defendant appropriated the full amount of the money to his own use and benefit, to plaintiff's damage in the further sum of $40.55; alleging further that, by virtue of the said rental contract, and under the provisions of Art. 5222, R.C.S., Vernon's Ann.Civ.St. art. 5222, plaintiff was entitled to a landlord's lien, for the sum of $157.50, on the stock heretofore mentioned; concluding with a prayer for judgment against the defendant for $198.05, and a foreclosure of his landlord's lien on the cattle and hogs, and, in the alternative, for one-half the stock and judgment for $40.55, and for general relief.
The defendant's answer contained a general denial, a denial of the existence of the lien; alleged that the cattle and hogs mentioned in plaintiff's petition were not the increase of the cow and hogs originally furnished by the plaintiff, but belonged exclusively to the defendant, and were exempt to defendant and his family; wherefore, he prayed that, the plaintiff take nothing (defendant also set up a cross-action against the plaintiff, but the issues arising in regard to same are not here involved).
The case was submitted on a general charge, and resulted in a verdict in favor of the plaintiff against the defendant for $150, for which amount the court rendered judgment in favor of plaintiff, reciting therein that, plaintiff had a landlord's lien to secure his debt, against the five Jersey cows, two black sows, seven pigs and two calves, being the stock mentioned in plaintiff's petition, and decreed foreclosure of said lien upon the cattle and hogs, ordering same sold as under execution, for the satisfaction of the judgment, cost, etc.; from which the defendant perfected this appeal.
By appropriate assignments and propositions, the defendant challenges the correctness of the judgment on the ground, generally, that the same is not supported by the evidence, and is contrary to the controlling rules of law.
Although the evidence on the issues of fact is in irreconcilable conflict, yet, the jury having found for the plaintiff, it becomes our duty to give due weight and credit to all evidence sustaining the verdict and judgment, and reject all in conflict therewith. However, after a careful examination of the record, we are driven to the conclusion that, the evidence supporting the judgment (the testimony of the plaintiff) is entirely too indefinite and inconclusive to form a basis for same. Without reviewing the evidence in detail, we simply state our conclusions to be, that the testimony of the plaintiff on certain material phases of the case leaves so much to presumption and conjecture, we do not think it can be said with reasonable certainty that he showed himself entitled to any interest in the cattle, except one cow, being the heifer calf received in exchange for the...
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