Shiner v. Abbie

• Decision Date: 11 April 1890
• Citation: Shiner v. Abbie, 13 S.W. 613, 77 Tex. 1 (Tex. 1890)
• Parties: SHINER <I>v.</I> ABBIE.
• Court: Texas Supreme Court

13 S.W. 613

SHINER

v. ABBIE.

Supreme Court of Texas.

April 11, 1890.

Appeal from district court, Frio county.

J. M. Eckford, for appellant.

HENRY, J.

Appellee instituted this suit, charging that about the 20th day of August, 1884, the defendant inclosed six sections of land belonging to plaintiff, and that by the permission of plaintiff he has since that date occupied and enjoyed the use of said land, having promised to pay plaintiff the reasonable value thereof, which has been six cents per acre per annum. Defendant excepted to the petition, on the ground that, by it, it was sought to recover both upon an express and an implied contract, without stating facts sufficient to constitute either. We think the petition states a good cause of action upon an implied contract, and contains no allegations of an express contract. The exception was properly overruled.

A witness for plaintiff testified, over the objection of defendant, that some time in 1886 he was informed by one Johnson, who was plaintiff's agent, that "they could not lease the land to him because the defendant had it leased." We think this evidence should have been excluded. The fact that other evidence of the same character had been introduced without objection did not furnish a satisfactory reason for allowing plaintiff to introduce the...