Shotwell v. Crier
| Decision Date | 21 June 1919 |
| Docket Number | (No. 9133.) |
| Citation | 216 S.W. 262 |
| Parties | SHOTWELL v. CRIER. |
| Court | Texas Court of Appeals |
Appeal from District Court, Taylor County; Joe Burkett, Judge.
Suit by W. T. Crier against E. F. Shotwell. Judgment for plaintiff for the difference between the verdict for plaintiff and the verdict for defendant on the cross-action or counterclaim, and defendant appeals. Judgment reformed and affirmed.
J. W. Moffett, of Abilene, for appellant.
C. H. Fulwiler, of Abilene, for appellee.
W. T. Crier leased a tract of land to E. F. Shotwell for the period of time beginning November 5, 1915, and ending July 1, 1916. The lease was in writing, and signed by both parties, and it was stipulated therein that the lessee should pay as rent for said land one-third of all the wheat and oats to be grown on the land for the year 1916. The lease contained the further agreement on the part of the lessee to plant the land in wheat or oats, or both, and at the termination of the lease term to deliver possession of the land to the lessor. During the summer of 1916, by oral agreement between the parties, the lease term was extended until July 1, 1917, under the same agreement with reference to the cultivation of the land and rents to be paid therefor as was shown in the written lease. This suit was instituted by Crier against Shotwell for damages for the breach of the defendant's rental contract in failing, as alleged by plaintiff, to cultivate and farm the land in a good and workmanlike manner, as he had bound himself to do, and in failing and refusing to deliver possession of the land to plaintiff after the termination of the lease; also for the value of certain farming implements, which it was alleged belonged to the plaintiff, and were carried away by the defendant and converted to his own use.
In his answer to plaintiff's suit, after specially denying the allegations therein, the defendant filed a cross-action or counterclaim in which he sought a judgment against the plaintiff for pasturing stock, digging a well, and certain other items, all aggregating the sum of $1,500.
The case was tried before a jury, who returned a verdict in favor of the plaintiff upon the cause of action asserted by him for the sum of $962.80, also in favor of the defendant on his cross-action against the plaintiff in the sum of $557.70, leaving a balance in plaintiff's favor of $405.10. A judgment was rendered in plaintiff's favor for the amount so awarded by the jury, plus $60.35 found by the court, and the defendant has appealed. But all assignments of error are addressed to the recovery by plaintiff upon his cause of action, no complaint being made that the judgment upon the counterclaim was for an insufficient sum.
The defendant did not deliver possession of the farm to plaintiff at the termination of the lease on July 1, 1917, when his lease terminated, but held the same until about December 15, 1917. In order to get possession of the farm, Crier instituted a suit of forcible detainer against Shotwell in the justice court on August 30, 1917, in which court he recovered a judgment for possession of the farm. But Shotwell appealed the case to the county court, and in that court Crier again recovered a judgment for the possession of the farm. In the prosecution of that suit Crier was forced to employ an attorney, to whom he paid a fee of $100, and incurred other expenses, such as hotel and traveling expenses incident to attending court for the trial of the case. Those expenses were alleged by him in the present suit, and he sought a recovery therefor as a part of his damages. And upon the trial of this suit that claim was submitted to the jury as one of the items of damages for which plaintiff might recover.
By different assignments of error, appellant has challenged plaintiff's right to recover that item of damages. Article 3960, V. S. T. C. Stats., relating to trials of such suits on appeal to the county court, reads as follows:
"On the trial of said cause in the county court the appellee shall be permitted to prove the damages for withholding the possession of the premises from the appellee during the pendency of the appeal, and for the reasonable expenses of the appellee in prosecuting or defending the cause in the county court; and, if the possession of the premises be not adjudged to the appellant, the said court shall render judgment also in favor of the appellee and against said appellant and the sureties on his bond for the damages proven and all costs."
That statute does not purport to exclude the right to recover for other damages not mentioned therein, resulting from a breach of the rental contract in other respects; neither does it purport to provide that the expenses incurred by the landlord therein mentioned cannot be recovered in any other suit than in a suit such as is therein referred to. It does give to the landlord the right to recover the expenses mentioned, and as those expenses constituted a part only of the damages sustained by plaintiff in the present suit for defendant's breach of his rental contract to cultivate the land in a proper manner, and to surrender possession at the end of the lease term, we can perceive no reason why plaintiff should be denied the right to claim such damages and all others that are recoverable in a single and separate suit. Indeed, we think such a course was in keeping with the rule that a multiplicity of suits should be avoided when the same is practicable.
We overrule the further contention, likewise presented in different assignments of error, to the effect that damages claimed by plaintiff for the alleged breach of defendant's contract to cultivate the land in a good, workmanlike manner were too remote, speculative, and uncertain to sustain an action therefor. It is insisted that the correct measure of damages for the wheat crop, which plaintiff alleged the defendant destroyed by pasturing stock thereon, was the value of plaintiff's share of the crop when it was so destroyed. Several decisions are cited to support that contention, such as T. & P. Ry. Co. v. Bayliss, 62 Tex. 572; G., C. & S. F. Ry. Co. v. Pool, 70 Tex. 713, 8 S. W. 535; Trinity S. Railway Co. v. Schofield, 72 Tex. 496, 10 S. W. 575. Those were suits for damages, sounding in tort, for the negligent destruction of growing crops, and it was held that the proper measure of damages was the value of the crops when destroyed. Yet it was held in I. & G. N. Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526, that the value of a growing crop would be the difference between the market value of what it would probably yield and the probable expense of cultivating and marketing it. So, it would seem that even under that rule the amount of damages recoverable would be the same as claimed by plaintiff in this suit for breach of defendant...
To continue reading
Request your trial
-
Drinkard v. Anderton
...661, 669; Freeman v. Field (Tex. Civ. App.) 135 S. W. 1073, 1075; Smith v. Roberts (Tex. Civ. App.) 218 S. W. 27, 30; Shotwell v. Crier (Tex. Civ. App.) 216 S. W. 262, 263. While most of the cases hereinbefore cited on the measure of damages do not state in specific terms that the value of ......
-
Compton v. Naylor
...First, the combined effect of automatic assessment of unlimited attorneys' fees on appeal against the losing party, Shotwell v. Crier, 216 S.W. 262 (Tex.Civ.App.1919), and the possibility of unlimited damages and costs being levied at the appeal level result in making the bond virtually uno......
-
Gaertner v. Stolle
...issue to the jury, he was not warranted in making a finding thereon himself, whether the jury fully answered or not. In Shotwell v. Crier (Tex. Civ. App.) 216 S. W. 262, it was held that notwithstanding defendant expressly admitted he owed plaintiff a certain sum so that the court did not s......
-
Whitfield v. Gay
...Haymakers Warehousing Corporation, Tex.Civ.App., 264 S.W. 326; Urban v Crawley, Tex.Civ.App., 206 S.W.2d 158, 162, RNRE; Shotwell v. Crier, Tex.Civ.App., 216 S.W. 262; H. L. Null & Co. v. J. S. Garlington & Co., Tex.Civ.App., 242 S.W. 507; Jones v. Cleaver, Tex.Civ.App., 250 S.W. 251. The j......