Rupert v. Swindle

• Decision Date: 08 March 1919
• Docket Number: (No. 8956.)
• Parties: RUPERT v. SWINDLE.
• Court: Texas Court of Appeals

212 S.W. 671

RUPERT v. SWINDLE.

(No. 8956.)

Court of Civil Appeals of Texas. Ft. Worth.

March 8, 1919.

Rehearing Denied April 12, 1919.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by J. R. Rupert against C. R. Swindle. From judgment for defendant on his cross-action, plaintiff appeals. Affirmed.

John W. Pope and D. W. Bowser, both of Dallas, for appellant.

A. C. Heath and W. C. Prewitt, both of Ft. Worth, for appellee.

DUNKLIN, J.

C. R. Swindle rented a farm from C. R. Rea for the year 1915. During that year Rea sold the property to J. R. Rupert, who, on January 4, 1916, instituted this suit against Swindle in the form of trespass to try title to recover the farm from Swindle, who was still in possession of it, holding the same under a claim of tenancy. Contemporaneously with the institution of the suit Rupert sued out a writ of sequestration, under which writ Swindle was ousted of possession. Swindle filed a cross-action, in which he sought damages against Rupert for wrongfully ousting him of possession of the farm, and prayed for judgment also against the sureties upon the sequestration bond. Plaintiff recovered a judgment for title to the property, and Swindle, upon his cross-action, recovered a judgment against him and the sureties upon the sequestration bond for the sum of $1,000, from which latter judgment Rupert has prosecuted this appeal.

One of the pleas urged by Swindle was that during the year 1915, and prior to the sale of the property by Rea to Rupert, he had entered into a contract with Rea for the rental of the premises for the year 1916, and that when Rupert purchased the farm from Rea he had notice of that contract, and purchased the farm subject to Swindle's right of tenancy for the year 1916. In answer to special issues, the jury found that Swindle did rent the property from Rea for the year 1916, as alleged, and that Rupert had notice of such contract "some time before September 7, 1915." The jury also further found, as pleaded by Swindle, that after Rupert learned of Swindle's contract with Rea for the rental of the farm for the year 1916, he "agreed to, and acquiesced in" and "ratified," the same, and that Rupert himself entered into a contract with Swindle by the terms of which he expressly rented the farm to Swindle for that year.

By different assignments of error appellant contends that the evidence was insufficient to sustain the finding by the jury that Rupert expressly made any contract of rental, or in any manner ratified the contract which the jury found Rea had made with Swindle to rent to the latter the farm in controversy for the year 1916. We are of the opinion that the evidence was sufficient to sustain the finding of an express contract of rental between Rupert and Swindle. While it is true that the evidence did not show any specific agreement between the parties with respect to the kind of crops that would be planted upon the land, nor the amount of rentals that would be paid therefor by Swindle, but, in the absence of such...