Ramsey v. Wahl

• Decision Date: 14 December 1921
• Docket Number: (No. 264-3484.)
• Citation: 235 S.W. 838
• Parties: RAMSEY v. WAHL et al.
• Court: Texas Supreme Court

Page 838

235 S.W. 838

RAMSEY v. WAHL et al.

(No. 264-3484.)

Commission of Appeals of Texas, Section A.

December 14, 1921.

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

Action by L. O. Ramsey against George W. Wahl, his mother, and another. From a judgment of the Court of Civil Appeals (218 S. W. 559), reversing a judgment for plaintiff against defendants Wahl and his mother, plaintiff brings error, and defendants Wahl also file cross-error. Judgment of Court of Civil Appeals set aside, and that of district court affirmed.

J. F. Weeks and Chas. Owen, both of El Paso, for plaintiff in error.

M. V. Ward and M. W. Stanton, both of El Paso, for defendants in error.

McKenzie & Loose, of El Paso, for defendant Terrell, Trustee.

GALLAGHER, J.

L. O. Ramsey sued George W. Wahl, Mrs. G. W. Wahl, and F. H. Terrell, trustee of the Goldoft Liquor Company, a bankrupt corporation, in the district court of El Paso county, Tex. Trial was had on an amended petition, in which Ramsey alleged that he was, on the 26th day of May, 1914, the owner of a retail liquor business in the town of Ysleta, and that on said date he sold to the defendant Wahl the said business, together with the stock of liquors, cigars, cash register, license, and fixtures, for the agreed sum of $1,250, and that on said date said George W. Wahl, joined by his mother, Mrs. G. W. Wahl, as consideration therefor executed and delivered to him their promissory note for the sum of $1,250, due six months after date with interest at the rate of 10 per cent. per annum, and providing for the payment of 10 per cent. additional as attorney's fees. He further alleged that he intended at the time to sell said note to the Goldoft Liquor Company, and that it was for convenience made payable to said company. He further alleged that the Goldoft Liquor Company held said note as agent and trustee for him; that it had never collected the same, but had indorsed and delivered the same to him, and that he was the legal and equitable owner thereof. He further alleged that said Terrell, in behalf of said bankrupt, was claiming some interest in said note.

Terrell, trustee in bankruptcy, answered, disclaiming any interest in the note.

George W. Wahl specially denied that said note had ever been transferred or delivered to Ramsey. Mrs. Wahl adopted his pleadings, and further alleged the execution of a chattel mortgage on the property acquired from Ramsey to secure said note, and that Ramsey had taken possession of all the property covered by said mortgage and had sold the same and appropriated the proceeds to his own use, and that she was a surety and was thereby discharged.

Only so much of the pleadings as is necessary to an understanding of the issues hereinafter discussed has been stated.

The case was submitted on special issues, in response to which the jury found that the note sued on was never delivered by the Goldoft Liquor Company to the plaintiff; that it was made payable to and received by said liquor company for the benefit of plaintiff; that Mrs. Wahl was a surety thereon, and that plaintiff knew that she was a surety at the time she signed the same.

Judgment was entered on the verdict that plaintiff recover of defendants George W. Wahl and Mrs. G. W. Wahl the amount sued for, and that he take nothing against the trustee in bankruptcy.

The Wahls appealed, and the Court of Civil Appeals for the Eighth Supreme Judicial District, in a majority opinion, reversed the case and remanded it to the district court. 218 S. W. 559. Both sides applied for a writ of error, and both applications were granted by the Supreme Court, thus bringing the whole case before us for review.

For convenience, the parties will be referred to as plaintiff and defendants respectively, as they appeared in the trial court.

The Court of Civil Appeals, in its majority opinion, held that there was a fatal variance between the note declared on and the note introduced in evidence. This holding is assigned as error. It is based on the fact that the note offered in evidence, in addition to the provisions declared on in plaintiff's petition, contained other provisions authorizing either of the makers to extend the time of payment without the consent of the other, and making it payable at a particular bank in El Paso, and the further fact that it recited that it was secured by a chattel mortgage on certain personal property. None of these matters were set out or referred to in plaintiff's petition.

There is no contention that the petition as amended, misdescribed any of the provisions of the note sued on. The contention is that the mere omission of the matters above referred to constituted a fatal variance.

While in a suit for breach of a written contract it is necessary to correctly allege all the provisions of the contract essential to the cause of action declared upon, it is not necessary to set out other provisions which in no way qualify or alter the provisions alleged to have been breached.

The rule is thus stated in 9 Cyc. p. 714:

"In order to avoid prolixity, so much of the contract as is essential to the cause of action should be set forth, and no more, and this also may be stated according to its legal effect. The plaintiff is not bound to state that which is merely matter of evidence. But, while it is not necessary to set out more of an alleged contract than pertains to the obligation, the breach of which is complained of, yet, if an alternative qualifies the obligation, the whole contract should be set out according to its legal effect, or tenor; or, to say the least, the omission of any part of the contract which materially qualifies and alters the legal nature of the promise alleged to have been broken will be fatal. In other words, if there is any part of an agreement, which materially qualifies or varies the sense and legal effect of the parts set forth, care must be taken not to omit it in order to avoid a fatal variance."

The following authorities, among many others, are in accord with the text quoted. Mason v. Kleberg et al., 4 Tex. 85, 86; Wooters v. I. & G. N. Ry. Co., 54 Tex. 294, 298; Ucovich v. First Nat. Bank, 138 S. W. 1102, 1105, 1106 (writ refused); Adams v. Davis, 16 Ala. 748; Stearns v. Barrett, 18 Mass. 443, 11 Am. Dec. 223; Detroit, H. & I. R. Co. v. Forbes, 30 Mich. 165, 172; Moore v. Mountcastle, 72 Mo. 605; Gibson v. Wheldon, 82 Vt. 175, 72 Atl. 909.

The provisions of the note sued on which were neither set out nor referred to in the petition were in no way essential to the cause of action declared on therein. Neither did they in any way modify or affect the same. The note was sufficiently pleaded.

The defendants were in possession of the note, and produced it in court and offered it in evidence, but attempted to restrict the purposes for which it should be received. The plaintiff then, over their objection, offered it in evidence for all purposes, and it was so received. We fail to see how they could reasonably claim to have been misled or surprised by its contents. Even in case of an affirmative misdescription, it must be such as to mislead or surprise the opposing party to constitute a fatal variance. National Bank v. Stephenson, 82 Tex. 435, 436, 18 S. W. 583, and authorities there cited.

The Court of Civil Appeals in its majority opinion held that, it having been shown that a chattel mortgage was executed to secure the note sued on, and that the property covered by such mortgage was dissipated with the knowledge of the plaintiff, and...