Peacock v. Coltrane

• Decision Date: 27 January 1909
• Citation: 116 S.W. 389
• Parties: PEACOCK v. COLTRANE.
• Court: Texas Court of Appeals

Page 389

116 S.W. 389

PEACOCK v. COLTRANE.

Court of Civil Appeals of Texas.

January 27, 1909.

On Rehearing, March 3, 1909.

Appeal from Bexar County Court; P. H. Shook, Judge.

Action by J. W. Coltrane against Wesley Peacock. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 91 S. W. 841 and 99 S. W. 107.

Carlos Bee and C. C. Todd, for appellant. C. A. Davies, for appellee.

JAMES, C. J.

Appellee states the nature of the case thus: "J. W. Coltrane was employed in the Peacock Military School for the year 1904-05, and his daughter had charge of the primary school under contract with J. W. Coltrane, which said primary school was owned by J. W. Coltrane and run in conjunction with Peacock's Military School; the graduates of the primary department to be promoted into the Peacock Military School, and the said primary department to constitute a feeder for the Peacock Military School. On the 19th day of January, 1905, the appellant, Wesley Peacock, by fraud, force, and deceit, took possession of the primary department, ejected May Coltrane, the teacher, who had been employed by J. W. Coltrane under an agreement by and between himself and the said Wesley Peacock, likewise dismissing the said J. W. Coltrane from Peacock's Military School without cause or justification. May Coltrane instituted suit in the county court against Wesley Peacock, but the court held that there was no privity of contract between May Coltrane and Wesley Peacock, and the case was dismissed by the court, and the judgment of the lower court was affirmed by the Court of Civil Appeals. J. W. Coltrane had, likewise, instituted suit in the Fifty-Seventh district court in cause No. 16,887 against the said Wesley Peacock, suing for his salary and damages by reason of an assault. After the action of the county court in holding there was no privity of the contract between May Coltrane and Wesley Peacock, J. W. Coltrane, appellee, appended to his action in the Fifty-Seventh district court the cause of action on the part of his daughter against the appellant, Wesley Peacock, which was excepted to by the appellant in said court because of a misjoinder of the parties and because of a prior suit pending between May Coltrane and Wesley Peacock in the higher court (which had not then been decided), and the court sustained such exceptions and dismissed that part of the cause of action. The balance of the cause undismissed was then tried before the jury, who found a judgment for J. W. Coltrane for his salary in the sum of $1,200, less certain credits admitted by J. W. Coltrane. After the decision of the Court of Civil Appeals in the case May Coltrane v. Wesley Peacock, J. W. Coltrane, the plaintiff herein, settled with May Coltrane, his daughter, the sum in which he was indebted to her under his contract with her, which he had been compelled to breach by the force, fraud, and deceit of the appellant, Wesley Peacock, and then sued said Wesley Peacock in the sum of money which he had thus paid under his view of the legal rights of May Coltrane."

The present suit includes a demand for $608, which same demand plaintiff had set up against this defendant in the district court case No. 16,887, and which was in that proceeding stricken out upon a ruling substantially that May Coltrane, and not plaintiff was entitled to sue therefor, and that May Coltrane was then prosecuting a suit therefor in the county court. Plaintiff, however, prosecuted the district court case to judgment, recovering on another item $1,200, and this judgment was on appeal affirmed by this court. Peacock v. Coltrane, 44 Tex. Civ. App. 530, 99 S. W. 107. The judgment in the case of May Coltrane in the county court was against her, and the judgment was affirmed; this court holding that she had no contract with Peacock and had no basis for her action against him (Coltrane v. Peacock, 91 S. W. 841, 14 Tex. Ct. Rep. 865); this being in effect a holding that her father alone was entitled to sue on the contract. The present suit was brought by him to recover the $608.

The question raised by the plea of res adjudicata is whether or not such claim had accrued and appertained to plaintiff at the time he brought his said suit in the district court, and, if so, was it extinguished by the judgment in that proceeding? His pleadings in that case (which were made a part of the plea of res adjudicata in this case) set up this claim, alleging that "the indebtedness of himself to said May Coltrane has been wholly caused by defendant's wrongful, forcible, and unlawful acts, and that by reason of said torts and wrongs, and under and by virtue of said contract of the said defendant with this plaintiff, the said defendant has become liable to pay and reimburse this plaintiff the said sum of $608." Thus we see that he set up and claimed in that suit this very item, as a part of the damages he had sustained by reason of Peacock's breach of the contract, just what he is seeking to do in the present case. The district court was in error in striking out that part of his pleading, but plaintiff was satisfied to have the judgment he recovered in that case affirmed, and saw fit not to complain of the said error by cross-assignments on the appeal. The very fact that plaintiff sustained a loss by incurring an indebtedness to his daughter by reason of defendant's breach of the contract and as one of the consequences thereof entitled him to recover of defendant therefor in the district court case, whether he had at that time actually paid his daughter or not. Hence the fact that afterwards he paid her off is immaterial. We are of opinion that whatever claim he had at...