Regester v. Lang, 949.

• Decision Date: 20 November 1930
• Docket Number: No. 949.,949.
• Citation: 33 S.W.2d 230
• Parties: REGESTER v. LANG.<SMALL><SUP>*</SUP></SMALL> ROBERTS v. SAME.
• Court: Texas Court of Appeals

33 S.W.2d 230

REGESTER v. LANG.^*

ROBERTS v. SAME.

No. 949.

Court of Civil Appeals of Texas. Waco.

November 20, 1930.

Rehearing Denied December 18, 1930.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Consolidated suits by H. W. Regester against C. Eugene Lang and by H. H. Roberts against C. Eugene Lang. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Callicutt & Upchurch and Taylor & Howell, all of Corsicana, for appellants.

Richard & A. P. Mays, of Corsicana, for appellee.

STANFORD, J.

This is an appeal by H. W. Regester and H. H. Roberts, respective plaintiffs below in causes Nos. 16429 and 16444, v. C. Eugene Lang, which causes were consolidated by the trial court. From the verdict and judgment on the trial of the consolidated causes in favor of C. Eugene Lang, the said Regester and Roberts have appealed and will hereafter be referred to as appellants, and the said Lang as appellee. Appellant Regester's suit was against appellee for specific performance of an alleged oral contract, by the terms of which it was alleged the said appellee agreed to convey to him, Regester, a 5/57 interest in an oil drilling device known as Lang's Twist Drilling Rotary Bit, and a like interest in a machine shop belonging to said Lang, in consideration for services alleged to have been rendered by Regester in procuring a purchaser for a 10/57 interest in said device and machine shop, and for services theretofore rendered Lang to the amount of some $1,500; that the result of such negotiations was the sale to H. H. Roberts of a 10/57 interest in the device and machine shop for the consideration of $5,000, for which services it was agreed that Regester should receive a 5/57 interest; that Regester had procured such purchaser in H. H. Roberts, who was ready, willing, and able to carry out his said contract of purchase of a 10/57 interest for $5,000 and had offered to do so, whereby he (the said Regester) was entitled to receive a 5/57 interest in accordance with his contract with Lang; but that Lang had failed and refused to perform his said contract either with Regester or with Roberts, etc. On the filing of the suit of Regester v. Lang a temporary injunction was procured by Regester on his execution of a bond for $1,000, restraining Lang from selling or disposing of said drilling device and the machine shops, etc. On a later date appellant H. H. Roberts filed his suit against appellee, Lang, for specific performance of an oral contract alleged to have been made with the said Lang, through the said Regester acting as agent for Lang, to sell to Roberts a 10/57 interest in said drilling device and machine shop for an agreed consideration of $5,000. Roberts alleged he had purchased from Lang, through Regester as Lang's agent, a 10/57 interest in said property for $5,000, and that he was ready, willing, and able to perform his said contract of purchase and had tendered payment to Lang, but that Lang had refused to perform his part of said contract; Roberts also prayed for specific performance. Appellee answered both suits by separate answers, denying in toto that he made either of said contracts. On motion of appellee Lang, the court consolidated said suits, and as consolidated tried same to a jury on special issues, the findings of the jury being as follows:

"Issue No. 1: The defendant Lang, acting by and through H. W. Regester, did not offer to sell to H. H. Roberts a 10/57 interest in the rotary bit and in his machine shop located on what is known as the Edens property, and to pool the interest of all the owners of said bit for the sum of $5,000.00 to be paid by H. H. Roberts."

"Issue No. 2: The plaintiff H. H. Roberts did not accept the offer of the defendant Lang and agree to pay to the defendant Lang the sum of $5,000.00."

"Issue No. 3: H. H. Roberts was not such a person as was ready, willing and able to pay the sum of $5,000.00 at such time as it was agreed to be paid."

"Issue No. 4: The defendant C. Eugene Lang did not agree to give H. W. Regester a 5/57 interest in said rotary bit and machine shop located on the Edens property in compensation for his services to the said C. Eugene Lang."

"Issue No. 5: The sum of $500.00, if paid now in cash, will reasonably compensate the defendant C. Eugene Lang for damages suffered by him financially by reason of the issuance of an injunction in this cause, which was procured by H. W. Regester."

On said findings the court entered judgment for appellee Lang, and also awarded appellee Lang $500.00 damages against appellant Regester and the surety on his bond, for wrongfully suing out the temporary injunction granted in this case. The appellants duly appealed and present the record here for review.

Under their first proposition appellants contend, in effect, that the consolidation of said suits by the court was reversible error. The record shows appellee, Lang, had perfected a drilling bit known as the Lang Twist Drill Rotary Bit. This entire litigation arose over asserted interests in this bit. Appellant Regester claimed substantially that, in consideration of his selling, as agent for Lang, a 10/57 interest in said patent to Roberts for $5,000, Lang, as per oral contract, became obligated to convey to him (Regester) a 5/57 interest therein and credit him for other alleged services to about $1,500. Appellee Lang denied having made such agreement with Regester, so Regester brought his suit for specific performance. Then appellant Roberts filed his suit against Lang for specific performance, claiming that, through Regester as agent for Lang, he entered into a contract with Lang under which Lang became obligated to convey to him a 10/57 interest in said patent for $5,000. Lang denied such contract, and denied that Regester had any authority to make such contract; hence the Roberts suit for specific performance. It will thus be seen the alleged contract of each Regester and Roberts with Lang, and the rights of the respective parties to specific performance thereof, was dependent upon a finding upon substantially the same contract. A finding that Lang did not make the alleged Regester contract would have been fatal to a cause of action by either of the appellants; and, so a finding that the alleged Regester contract had been made by Lang would have entitled both Regester and Roberts to recover from him. We think clearly Regester and Roberts could have joined in a suit for the purpose of enforcing specific performance of the alleged oral contract, and, if so, then the court correctly consolidated said suits. As the two suits were pending on the docket of the same court, grew out of the same transaction, involved the same facts, and were dependent upon the same proof, we think the trial court was correct in consolidating same. Article 2160, Revised Statutes; Texas Jurisprudence, Vol. 1, pages 675, et seq.; Halliburton v. Martin, 28 Tex. Civ. App. 127, 66 S. W. 675. It is also true that an order consolidating actions will not be disturbed or reviewed on appeal, except in case of a manifest abuse of discretion resulting in prejudice to appellants. Vernor v. Sullivan & Co. (Tex. Civ. App.) 126 S. W. 641; Young v. Gray, 65 Tex. 99; Leslie v. Elliott, 26 Tex. Civ. App. 578, 64 S. W. 1037; Ferguson v. Dodd (Tex. Civ. App.) 183 S. W. 391; Hardin v. Majors (Tex. Civ. App.) 246 S. W. 100; Western Union Telegraph Co. v. Morrow (Tex. Civ. App.) 208 S. W. 689; Cox v. Steed, 62 Tex. Civ. App. 193, 131 S. W. 246. We do not think there was any error in consolidating said cases, but, if there was, evidently appellants sustained no injury by reason thereof. This proposition is overruled.

Under the second, third, fourth, and eleventh propositions, appellants contend it was reversible error for the trial court to permit counsel for appellee, over objection of appellants, to discuss in his argument to the jury the failure of appellant Roberts to pay into the registry of the court the alleged $5,000 consideration for a 10/57 interest in the patent, in view of the fact the trial court had theretofore refused to require said deposit to be made. The argument of which complaint is made was as follows: "Gentlemen of the Jury, the suit of these plaintiffs, in my opinion, is a deliberate frame-up between Regester and Roberts, born after they found out the value of this patent, to tie up old man Lang and compel him to compromise an unfounded claim and surrender to them an interest in a valuable patent and properties without themselves putting up one dollar or taking any risks whatever. This man Roberts, the investment banker from Dallas, has refused to pay one dime to old man Lang or to deposit the $5,000.00 that he promised to deposit in Court. Gentlemen of the Jury, what assurance has Lang that Roberts will ever pay one dime of the alleged consideration that Roberts claims he was to pay for this patent interest and properties, and you have no right to assume that he will do so. He (meaning Roberts) has refused to pay one dollar of what he himself claims he was to pay, and has refused to deposit the money in the custody of the court. Gentlemen, if you decree a specific performance of this so called contract of sale these plaintiffs would have Lang's hands tied without having paid one dollar's consideration."

There is no statement in the bill of exceptions, nor in any part of the record, that the argument of which complaint is made was not called for or provoked in response to some argument by opposing counsel. This being true, no error is shown. Oilbelt Motor Co. v. Hinton (Tex. Civ. App.) 11 S.W.(2d) 338; Texas Pacific Coal & Oil Company v. Grabner (Tex.Civ. App.) 10 S.W.(2d) 441; Thompson v. Caldwell (Tex. Civ. App.) 22 S. W.(2d) 720; Vincent v. Bell (Tex. Civ. App.) 22 S.W.(2d) 753. It is further true there is no contention on the part of appellants that the evidence is not ample to support the findings of the jury. This being true, it is reasonably apparent appel...