Peoples v. Brockman

• Decision Date: 29 January 1913
• Citation: Peoples v. Brockman, 153 S.W. 907 (Tex. App. 1913)
• Parties: PEOPLES v. BROCKMAN et ux.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

153 S.W. 907

PEOPLES v. BROCKMAN et ux.^†

Court of Civil Appeals of Texas. San Antonio.

January 29, 1913.

On Motion for Rehearing, February 19, 1913.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by H. H. Brockman and wife against J. S. Peoples. Judgment for plaintiffs, and defendant appeals. Reformed and affirmed.

Martin & Martin and L. Old, all of Uvalde, for appellant. G. B. Fenley and Claude Lawrence, both of Uvalde, for appellees.

MOURSUND, J.

H. H. Brockman and Mary Brockman, husband and wife, sued J. S. Peoples and Joel Peoples, Jr., alleging that in January, 1910, said Mary Brockman sold said J. S. Peoples a certain stock of cattle to be delivered at the Barksdale ranch in Edwards county, for which he agreed to pay her the market value of said cattle; that payment was to be made by said J. S. Peoples paying off a note for $1,000 owing by plaintiff to the State Bank of Uvalde, and the remainder to be paid in cash; that they delivered to said J. S. Peoples 104 head of the cattle of the market value of $15 per head, making a total of $1,560; that Peoples paid said $1,000 note, but breached his contract with respect to the payment of the remaining $560, whereupon plaintiffs rescinded said contract as to the remaining cattle owned by them out of said stock cattle. Plaintiffs further alleged, at the time of entering into the agreement above mentioned, Mary Brockman stated to said Joel S. Peoples that after delivery of the cattle, if he should decide to purchase some horses, belonging to her, running on said ranch, she would sell them to him, and they would agree on the price to be paid for them; but no contract or agreement with reference to said horses was then or thereafter agreed to between them, but a few days after the delivery of said cattle defendants Joel S. Peoples and Joel Peoples, Jr., wrongfully and without legal right, and without the knowledge or consent of either of plaintiffs, took from the possession of plaintiffs five horses and a mule, which they converted to their own use and benefit; that the value of said animals, at the date of the conversion thereof, was $415, for which amount plaintiffs prayed judgment, as well as for said amount of $560, balance alleged to be due for the cattle. Plaintiffs further alleged that about January 7, 1910, and about two days after the making of the parol agreement above set out, and before the delivery of said cattle, the said Joel S. Peoples went to said Mary Brockman and defendant Z. D. Brockman and requested and urged them to sign a bill of sale to all the live stock of plaintiffs, both cattle and horses, which recited a consideration of $1,000; that said parties at first refused to sign the instrument, because the true consideration was not recited therein, and because it included the horses, which were not included in the sale made to him; that said Peoples acknowledged the correctness of the original agreement, as hereinbefore set out, and stated that the signing of the bill of sale in no manner affected said original trade; that he further represented to them that he desired said bill of sale for the sole purpose of showing same to the bank in order that he might better handle the indebtedness against said stock, and in order to raise the money to pay off said note and satisfy the mortgage; further that he did not intend said instrument as a bill of sale, but to use it only as a mortgage, or as collateral security, by means of which he would be able to raise the amount of money necessary to pay off the said note; also that he desired the horses included in the said instrument, because the cattle might fall short in numbers, and not be sufficient to reimburse him for paying off said note, in which event he wanted a sufficient number of horses at their market price, to pay him for the shortage in cattle, if any, to make the amount of said note; that said Joel S. Peoples is now falsely and fraudulently claiming such instrument to be an unconditional bill of sale to the property described therein, and claiming title to such property against plaintiffs.

Defendants, on January 6, 1911, filed a cross-action against plaintiffs and Z. D. Brockman, sequestrated the remaining horses, mules, and cattle of plaintiffs, claiming that said J. S. Peoples was the owner of all of the same. On March 4, 1911, they filed their original answer, which contained various exceptions, general denial, and a plea that on January 7, 1910, J. S. Peoples bought from Mary Brockman and Z. D. Brockman the entire stock of horses and cattle, in the brands mentioned in plaintiffs' petition, for the amount due on said note to the bank, which he had paid, and that said Mary Brockman and Z. D. Brockman executed a bill of sale to defendant J. S. Peoples for all of said horses and cattle. They prayed for judgment for possession of the balance of the horses and cattle.

Upon the trial it was agreed that neither Z. D. Brockman nor Joel Peoples, Jr., had any interest in the suit, and they were eliminated from the same. The trial resulted in a verdict and judgment in favor of plaintiffs for $696, and for possession of the remaining stock originally belonging to plaintiffs, from which judgment J. S. Peoples has appealed.

The first assignment of error is based upon the overruling of a special exception attacking the petition on the ground that an action, based on the breach of a contract, is joined with an action based upon a tort.

Under our liberal procedure, a suit may include an action for breach of contract and one for tort, provided they are connected with each other or grew out of the same transaction. Harris v. Cain, 41 Tex. Civ. App. 139, 91 S. W. 869; Kirby Lumber Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 609; Hoskins v. Velasco Nat. Bank, 48 Tex. Civ. App. 246, 107 S. W. 604; Farmers' Bank v. Merchants' Bank, 136 S. W. 1123. See, also, Emerson v. Nash, 124 Wis. 369, 102 N. W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944. The allegations of defendant's answer may be considered in aid of plaintiffs' petition. Loan Ass'n v. Biering, 86 Tex. 476, 26 S. W. 39.

If the pleadings show that the causes of action grow out of the same transaction or are connected with each other, then this assignment must be overruled. The controversies grew out of a trade between Mary Brockman and Joel Peoples, and it is not contended by either party that more than one trade was made. Mrs. Brockman contends the trade was verbal and made a couple of days before January 7th, while Peoples contends the trade was evidenced by bill of sale and was made on January 7th. Mrs. Brockman claims that the bill of sale was fraudulently procured. She admits the sale of her cattle, but not of her horses. Peoples claims he bought both horses and cattle, and in pursuance of such claim takes possession of the horses alleged to have been converted. Mrs. Brockman sues for balance due on the contract for sale of the cattle, and for the damages resulting from the conversion of the horses. The real issue is, What was the trade between these parties? and the court, being called upon to determine such question, should also determine all the rights of the parties with respect to the subject-matter of such contract from either standpoint. If Peoples is sustained, he owes plaintiffs nothing, and recovers all other stock sued for by him in his cross-action; if plaintiffs are sustained, they recover the balance due on the cattle, the amount due for horses converted, and the remainder of the stock. The claims of each party are based upon the trade made between them; and, when the terms of the trade are established, all rights, which are asserted by reason of such trade, should be settled. If the taking of the horses constitutes conversion, it is a tort, yet it is admitted by defendant's answer that the act alleged to constitute a tort was based upon a right claimed under the contract of sale; in other words, he connects his act with the contract of sale. We...