Simmons v. Eakin, 8904.
| Decision Date | 16 November 1932 |
| Docket Number | No. 8904.,8904. |
| Parties | SIMMONS et ux. v. EAKIN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; Chas. E. Thompson, Judge.
Suit by J. E. Eakin against R. F. Cook, in which B. S. Simmons and wife intervened. From a judgment foreclosing plaintiff's attachment lien, interveners appeal.
Reversed and remanded.
Griffin, Kimbrough & Cox, of McAllen, for appellants.
L. J. Polk, of Pharr, for appellee.
The land involved was owned by R. F. Cook until he made an alleged parol sale thereof to B. S. Simmons in August, 1929, in settlement of a pre-existing debt he owed Simmons. No deed was made until November 19, 1930.
In the meantime, on November 5, 1930, however, the land was seized under writ of attachment issued in behalf of J. E. Eakin in a suit upon a judgment previously obtained by him against Cook in a federal court in Arkansas, in which state all the parties, Cook, Simmons, and Eakin, reside.
Simmons intervened in the present suit, claiming ownership of the land under said parol sale. But Eakin recovered judgment upon his claim against Cook and for foreclosure of his attachment lien against Simmons, who has appealed.
Both Cook and Simmons testified clearly and positively that, because Cook was unable to pay his debt of $4,000 to Simmons, he offered to convey the land involved to the latter to satisfy that debt, and that the latter agreed, albeit reluctantly, thereto; that Simmons thereupon assumed dominion over the premises, and at his own expense built new and repaired old houses thereon, planted the land to citrus trees, paid that and the next years' taxes thereon (amounting to $1,300 per year).
It was agreed between the two at the time that upon their return to their homes in Arkansas Cook would make and deliver his deed conveying the premises to Simmons. But the matter was allowed to run along, unattended to; the parties being friendly. In fact, Cook's wife is Simmons' daughter. The deed did not pass, as stated, until the parties were spurred to attention thereto by the filing of this suit and the seizure of the premises under attachment. The foregoing facts were testified to by both Simmons and Cook in consonance. But the jury, obviously skeptical, found that the minds of the principals did not meet upon the contract alleged.
It appears that one Phillips has cultivated these premises for the past ten or twelve years, first, as a tenant of Cook up to the time of the parol sale, and thereafter as a tenant of Simmons. The evidence raises an issue of fact as to whether Phillips took actual farming orders from Cook or from Simmons during the crop season immediately following the sale; that is, from September, 1929, to September, 1930. But it is undisputed that Simmons nevertheless at once took over control of the premises and, through Phillips, made the improvements thereon, as stated.
Now it transpired that upon the trial appellants offered the testimony of Phillips to the effect that he was a witness to the negotiations between Cook and Simmons, heard their discussion of and final agreement upon the alleged parol sale, in substantial accordance with appellants' allegations. But the trial court excluded the proffered testimony, upon appellee's objections that it was "irrelevant, immaterial, incompetent, hearsay and self-serving." In this we think the court erred materially. The contract rests upon the words of Simmons and Cook uttered at the time of the agreement, in the absence of appellee. Proof of those utterances may be made without violating the hearsay rule. As a part of the res gestæ it is substantive evidence of a crucial fact, and is not subject to the objections advanced by appellee. 3 Jones, Ev. p. 2014, § 1091; Rupert v. Swindle (Tex. Civ. App.) 212 S. W. 671; Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 507; Sparks v. De Bord (Tex. Civ....
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