Randon v. Barton

• Decision Date: 31 December 1849
• Citation: 4 Tex. 289
• Parties: RANDON v. BARTON.
• Court: Texas Supreme Court

4 Tex. 289

RANDON

v.BARTON.

Supreme Court of Texas.

December Term, 1849.

Wherever it is proper to join several defendants in the same suit, the suit may be instituted in any county where one of the defendants resides.

Where a divisible obligation to do a thing was given to two, and one of the obligees, without authority from the other, but professing to have such authority, assigned it to another: Held, That the assignee could join the obligees and obligor as defendants in the same suit, and recover one-half of the obligation from the obligor and damages for the other half from the assignor.

Where a person undertakes to assign an instrument which he has no right to assign, he is not entitled to demand due diligence of the assignee to collect the money or enforce the obligation.

No demand and notice or other evidence of diligence is necessary when from the facts of the case it is apparant that the party to be charged had no right to expect it and could not have been injured by the want of it.

A contract for the transfer of land certificates need not be under seal.

The rule respecting the measure of damages for breach of contract to transfer and deliver land certificates is that which applies to the breach of contracts for the sale of chattels, not of lands. (Note 58.)

Where contracts for the sale of chattels are broken by the failure of the vendor to deliver the property according to the terms of the contract, if the price has not been paid in advance, the measure of damages is the difference between the price contracted to be paid and the value of the article at the time when it should have been delivered; but if the price has been paid in advance, the purchaser is entitled to the advantage of any rise in the market value of the article which may have taken place up to the time of the trial. (Note 59.)

Where the suit was for land certificates or their value, and the jury found for the plaintiff “two thousand and eighty acres of land, at eighteen and three-quarter cents per acre,” the court gave judgment in favor of the plaintiff for three hundred and ninety dollars: Held, There was no error.

Error from Bastrop. The defendant in error brought suit against the plaintiff in error jointly with Edward Burleson and Thomas F. McKinney, in the District Court for Bastrop county, on the 20th day of July, 1847. The petition alleged, in substance, that the plaintiff was the owner of a certain contract in writing, made by Burleson with McKinney and Randon, for the transfer, by the former to the latter, of certain land certificates described in the petition, and calling for the quantity of four thousand one hundred and sixty acres of land; that for a valuable consideration the defendant Randon contracted to transfer, and did assign to the plaintiff, the entire interest in said contract, the said Randon representing that the entire interest belonged to him, and that McKinney had transferred to him all the right and interest which he ever had in the contract; that the plaintiff had presented the contract to Burleson, the maker, and demanded the certificates referred to, but that he had refused to deliver or transfer the certificates, alleging that there still remained in said McKinney a right to the undivided half of them, and that he had been notified by McKinney of his interest. The plaintiff alleged that he had sustained damages, etc., and prayed that the entire interest of all the defendants be decreed to him; or if, by reason of the claim and rights of the defendant McKinney, that cannot lawfully be done, that the interest of the defendant Randon be adjudged to him, and that he have judgment against said Randon for the value of so much in amount of the certificates assumed to be conveyed by him as he, Randon, had no authority or right to convey, which he alleged to be of the value of twenty-five cents per acre. The petition alleged that the defendant Burleson resided in the county of Bastrop, McKinney in the county of Galveston, and Randon in the county of Fort Bend, and concluded with a prayer for process and for general relief. The contract described in the petition and made a part of it is set out in the record, and purports to be made by Burleson in favor of McKinney and Randon, and to have been assigned by Randon to the plaintiff Barton, as follows: “I have this day transferred the above obligation on Gen. E. Burleson, for four thousand one hundred and sixty acres of land certicates, to Wayne Barton, for the valuable consideration of four hundred dollars, this 18th February, 1847.”

D. RANDON.”

At the fall Term, 1847, the defendants McKinney and Burleson answered, and the plaintiff had judgment against the latter for two thousand and eighty acres of land certificates, being half the amount claimed in the petition; and the defendant Randon having been served with process and failing to appear, judgment by default was taken against him, and a writ of inquiry awarded; upon which, after hearing the evidence, the jury returned a verdict for the plaintiff for two thousand and eighty acres of land, at eighteen and three-fourths cents per acre, and the court thereupon gave judgment for $390; to reverse which the defendant Randon prosecuted this writ of error.

Munger, for plaintiff in error. The obligation of Randon was an independent one. There was no such privity as justified the joinder of him in a suit against Burleson.

II. The contract was for the conveyance of realty, and should have been sealed.

III. The plaintiff did not use due diligence to enforce the obligation against the maker. The instrument was assigned on the 18th of February, and suit was not commenced until the 20th of July thereafter. He was not, therefore, liable as surety. It will hardly be contended that he can be held liable in warranty in an action like this.

IV. Neither in law nor equity can the plaintiff recover “the present value of the certificates.” He was at most only entitled to $200 and interest from the time he paid the money.

V. The court had no jurisdiction of the suit, if for land; no jurisdiction of the person, if the suit was for damages.

Gillespie, for defendant in error. The joinder of the defendants is authorized upon general principles of law, and seems to be enjoined by the act of 1846, p. 375, secs. 48, 49.

WHEELER, J.

Of the several errors assigned there are but two which are deemed of a character to require particular notice, and these are--

1st. That the plaintiff did not show the use of diligence sufficient to charge the indorser, Randon.

2d. That the verdict is illegal in having found the present value of the land certificates.

That the plaintiff could maintain this action against the defendants jointly, and in the county of the residence of either, cannot admit of a doubt. (Acts of 1846, p. 375, sec. 46; Id., pp. 363, 364, sec. 1.)

But it is insisted that the plaintiff did not use due diligence to enforce his contract against the maker. To this objection it is a sufficient answer that the present is not a case to which the rules which have been invoked respecting diligence are applicable. The defendant Randon undertook by his assignment to transfer an interest which he did not possess and which he had no right to convey. His assignment, therefore, was a fraud upon the plaintiff, and he had no right to notice the refusal of the maker to perform the contract. He had no right to expect that Burleson would convey the certificates upon his individual assignment. No demand and notice or other diligence, therefore, was necessary to charge him. The reason for giving notice and the necessity of it ceases when from the facts of the case it is...