Russell v. Old River Co.

• Court: Texas Court of Appeals
• Writing for the Court: Walker
• Citation: Russell v. Old River Co., 210 S.W. 705 (Tex. App. 1919)
• Decision Date: 10 March 1919
• Docket Number: (No. 435.)
• Parties: RUSSELL et al. v. OLD RIVER CO. et al.

210 S.W. 705

RUSSELL et al. v. OLD RIVER CO. et al.

(No. 435.)

Court of Civil Appeals of Texas. Beaumont.

March 10, 1919.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Suit by the Old River Company against T. C. Dunn, Jr., R. R. Russell, and others, wherein T. C. Dunn, Jr., by his answer made W. E. Vasbinder a party. From the judgment, R. R. Russell, W. E. Vasbinder, and the other defendants, except T. C. Dunn, Jr., appeal. Affirmed.

Horace E. Wilson, of San Antonio, for appellants.

Oswald S. Parker, of Beaumont, Andrews, Streetman, Logue & Mobley, of Houston, and E. B. Pickett, Jr., of Liberty, for appellees.

WALKER, J.

In September, 1917, Old River Company made a verbal contract with T. C. Dunn, Jr., whereby the said Dunn was to have permission to pasture about 2,500 head of cattle on 7,000 or 8,000 acres of its lands in Chambers and Liberty counties for an agreed consideration of $3,500; pasture rights to extend until April 1, 1918. Afterwards, Dunn made a contract with W. E. Vasbinder to pasture for him 2,500 head of cattle for the same length of time, and on the same lands, this contract being in writing, and is as follows:

       "Houston, Texas, Sept. 12, 1917
                

"This agreement entered into this day by and between T. C. Dunn, Jr., of Houston, Harris county, Texas, and W. E. Vasbinder of Center Point, Kerr county, witnesseth:

"That the said Dunn for and in consideration of three dollars and fifty cents ($3.50) per head agrees to pasture, beginning September 15, 1917, twenty-five hundred (2,500) head of cattle for said Vasbinder, in part of the rice fields and pastures belonging to the Old River Rice & Irrigation Company in Chambers county, Texas. Said Dunn agrees to receive said cattle at the unloading pens at Walley, Chambers county, Texas, and deliver the said cattle back to and onto the train at Walley, Chambers county, Texas, or other point to be agreed upon later, free of extra cost to said Vasbinder on or about April 20, 1918. If said Vasbinder desires to ship out said cattle on or before April 1, 1918, then said Dunn is to deduct fifty (50¢) cents per head from said cattle, and the amount to be paid said Dunn by said Vasbinder will be three ($3.00) dollars per head instead of three dollars and fifty cents ($3.50) per head. The said amount to be paid said Dunn when cattle are delivered back to said Vasbinder on the train at Walley, Texas, or point to be decided on. In the event said cattle fail to do well in the rice farms and pastures in which they are to be located, on account of lack of feed in the way of sufficient grasses, tame or otherwise, then the said Dunn hereby agrees to give the said cattle more room in said rice farms and pastures.

"It is hereby understood by and between said Dunn and said Vasbinder that they are to hire a man to stay with the said cattle, to look after and care for them, and the said Dunn and said Vasbinder are to pay one-half each of the expense of this man. It is hereby acknowledged by the said Dunn that said Vasbinder has paid to said Dunn five hundred ($500.00) dollars in cash to show his good faith in the premises.

                         "T. C. Dunn, Jr
                                         "W. E. Vasbinder
                  "Witness: John J. Boyle."
                

Vasbinder then arranged with R. R. Russell, R. H. Martin, and T. P. Russell for them to pasture their cattle with his on the property described above; they to pay Vasbinder $4 per head. Some time about the last of November or the first of December, Old River Company notified Vasbinder and his associates that Dunn had not paid the $3,500 due by him, and that the company was going to look to them for this pay, and advised them not to pay their rent to Dunn until Old River Company was paid. Part of the cattle of appellants remained on the land of Old River Company after the expiration of their contract with Dunn, under a special contract between them and Old River Company. Dunn never paid Old River Company, nor did the appellants herein pay Dunn or the Old River Company.

This suit was brought by Old River Company against R. R. Russell, R. H. Martin, T. P. Russell, and T. C. Dunn, Jr., to recover $3,500 rental, which Dunn had agreed to pay, less a small credit entered by agreement, and to foreclose the lien claimed by Old River Company against the cattle; it pleading the contract substantially as set out above.

T. C. Dunn, Jr., answered, making Vasbinder a party to the suit, and alleging that Russell, Martin, Russell, and Vasbinder, the appellants here, were partners, pleading the contract between him and Vasbinder, and asking for judgment against them as partners for the amount due under the contract, this amount being in the sum of $5,970.67, the appellants having paid about $1,900 on this contract before the suit was filed.

The appellants answered the plaintiff's petition and this affirmative action of Dunn against them, by pleading the contract as above set out, and further that, at the time of the execution of said contract, Dunn pointed out to appellants certain lands as being the lands on which appellants were to pasture their cattle, and that Dunn falsely represented to appellants that he had 20,000 acres of land on said premises, 5,000 of which was pasture land and 15,000 of which was rice land, and that appellants could have the use of all of this land for their cattle, if necessary; that he further represented that the stacks of rice straw on the premises were for the use and benefit of appellants' cattle; and that the premises were well watered by wells and running bayous, and that Dunn took them on the lands and pointed out to them certain land as being a part of the leased premises, which in fact was not. He further alleged that all of said representations were falsely and fraudulently made by Dunn for the purpose of inducing appellants to pasture their cattle with him and enter into the above agreement; that Dunn further agreed that if the cattle failed to do well on the rice farms, to give the cattle more room, and this representation was falsely and fraudulently made by the said Dunn; that the said Dunn failed and refused to carry out all the representations made by him before the contract was signed; and that appellants suffered damages thereby in the sum of about $29,000. They did not deny under oath the partnership as pleaded by Dunn.

On the trial of the case before a jury, on the conclusion of the testimony, the trial court instructed the jury to return a verdict for Old River Company against Dunn and R. R. Russell, R. H. Martin, and T. P. Russell, for the amount claimed by it, with a foreclosure of lien against the cattle owned by appellants; and also instructed a verdict for Dunn against all of the appellants for the amount claimed by him against them in the sum of $5,970.67, with a foreclosure of lien against the cattle; the judgment further providing that appellants, when they paid the Old River Company judgment, should have a credit for the same against the judgment held by Dunn. To this action of the court, appellants excepted, and this case is now before us on appeal. All parties have filed briefs.

Appellees object to our considering appellants' brief, asserting that the same is not prepared according to the rules for briefing. These objections are well taken.

Appellees' first objection is that the assignments are not consecutively numbered, as required by said rules. Appellants' assignments are numbered 1, 2, 3, 6, 7, 8, 9, 10, 11, and 12; it thus appearing that the fourth and fifth assignments are omitted. Appellants' brief is subject to this criticism. Rule 29 for the Courts of Civil Appeals (142 S. W. xii); Barron v. White, 155 S. W. 590; Grisham v. Connell Lbr. Co., 164 S. W. 1107; Taylor v. Butler, 168 S. W. 1004; Petty v. City of San Antonio, 181 S. W. 224; Western Union Telegraph Co. v. Golden, 201 S. W. 1080.

The following additional objections are made against appellants' tenth assignment of error:

(a) Said assignment is multifarious.

(b) The propositions under said assignments are not germane to the assignment itself.

(c) Neither the assignment nor the propositions thereunder are supported by statements adequate to advise the court concerning the issues sought to be presented or to enable the court to form any judgment concerning such issues.

This assignment is divided into six separate paragraphs, each separately numbered, except the first, and each paragraph within itself being a separate assignment. It is followed by no statement whatever, except:

"See testimony Vasbinder, S. F. 3 et seq., testimony T. P. Russell, S. F. 50 et seq., testimony Hedgard, S. F. 30 et seq.," etc.

This assignment is subject to this criticism, and under the following authorities it should not be considered:

To the effect that an assignment which is multifarious will not be considered, see Rules 25, 26, and 30 for Courts of Civil Appeals (142 S. W. xii, xiii); Davidson v. Jones, Sullivan & Jones, 196 S. W. 571; Holton v. G., H. & S. A. Ry. Co., 31 Tex. Civ. App. 128, 71 S. W. 408.

To the effect that, where the propositions are not germane to the assignment and the assignment itself is not a proposition, the court will refuse consideration, see Rule 30 for Courts of Civil Appeals; Ward v. Odem, 153 S. W. 634; Duren v. Bottoms, 60 Tex. Civ. App. 355, 129 S. W. 376.

To the effect that, where neither the assignment nor the propositions thereunder are supported by adequate statements from the record, the court will refuse consideration, see Rule 31 for Courts of Civil Appeals (142 S. W. xiii); McKenzie v. Beason, 140 S. W. 246; First National Bank of Crockett v. Hardtt, 204 S. W. 712; Ins. Co. v. Ellison, 160 S. W. 1141; Ludtke v. Murray, 199 S. W. 321; Hooks et al. v. Pate, 197 S. W. 613; Davidson v. Jones, Sullivan & Jones, 196 S. W. 571; Louisiana & Texas Lbr. Co. v. Kennedy, 119 S. W. 888; Edwards v. Smith, 137 S. W. 1164; Childress v. Robinson, 161 S. W. 78.

Appellees also...