Slaughter v. Moore

• Decision Date: 03 November 1897
• Citation: 42 S.W. 372
• Parties: SLAUGHTER v. MOORE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

42 S.W. 372

SLAUGHTER v. MOORE et al.¹

Court of Civil Appeals of Texas.

November 3, 1897.

Appeal from district court, Mills county; W. A. Blackburn, Judge.

Action by S. W. Moore against John B. Slaughter and D. W. Christian. From a judgment for plaintiff, defendant Slaughter appeals. Affirmed.

W. R. Smith and Hogg & Robertson, for appellant. Lindsey & Goodson, for appellees.

KEY, J.

This is a suit based upon a written contract, which reads as follows: "The State of Texas, County of Mitchell. This contract, this day made and entered into by and between John B. Slaughter, of the aforesaid state, and Mitchell county, and D. W. Christian, of the aforesaid state and Mills county, witnesseth that the said John B. Slaughter has this day, for the consideration hereinafter named, bargained and sold unto the said D. W. Christian the following described cattle, to wit: Eleven hundred (1,100) head out of 1,150 head of 2, 3, and 4 year old steer cattle now running in what is known as the `Refrigerator Pasture,' 15 miles east of Colorado, Tex., at nineteen ($19.00) dollars per head. Said Christian has the right to have cattle delivered at Mullen, provided he will pay said Slaughter $300.00. If Christian elects to have delivery at Colorado, said Slaughter shall be paid $60.00 by Christian. Said Christian agrees to give 15 days' notice to said Slaughter when to make delivery of above cattle, and all of said cattle to be smooth, straight, merchantable cattle; swaybacks and big-jaws and cripples and blinds to be rejected by the said D. W. Christian. The said cattle are to be in the following marks and brands: Marked thus: ; branded thus: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, TH connected, H6 connected, and various brands on left side. The said John B. Slaughter binds himself to deliver said cattle unto the said D. W. Christian on the 1st to the 15th days of October, A. D. 1895, at Christian's option, at Colorado or Mullen, Texas, at Christian's option, free from all expense to the said D. W. Christian. The said cattle are to be passed upon and graded at pasture in Mitchell county, and counted at Colorado or Mullen, at Christian's option. At the signing of this contract the said D. W. Christian pays unto me, the said John B. Slaughter, the sum of $4,000.00, the receipt of which is hereby acknowledged, and the said amount of $4,000.00 is to be considered as the advance payment on said contract, and the balance is to be paid upon the delivery of said cattle at Colorado or Mullen, Texas. This instrument is signed, sealed, executed, and delivered in duplicate, each party retaining one. Witness our hands and seals this the 29th day of June, A. D. 1895. [Signed] John B. Slaughter. D. W. Christian." Christian assigned and guarantied performance of the contract, by the following indorsement on the back thereof: "Comanche, Texas, Aug. 28th, 1895. I hereby transfer all my right, title, and interest in and to the steer cattle herein contracted between the subscribers hereto for a valuable consideration, and hereby guarantee to S. W. Moore, the conveyance herein, the fulfillment of this contract, according to its face and reading. [Signed] D. W. Christian." Moore sued Slaughter as principal and Christian as guarantor for non-performance of the contract, and obtained a verdict and judgment for $7,575, and Slaughter has appealed.

It is not charged in appellant's brief that the verdict is not sustained by testimony; the only assignment of error on that subject being to the effect that the court erred in not granting appellant's motion for a new trial, because the great preponderance of the evidence showed that the $4,000 paid in cash on the cattle was a forfeit; that plaintiff failed and refused to receive and pay for the cattle according to the contract; and that at the time and place said cattle were to be delivered they were not worth more than $15 per head. When, as in this case, the verdict is based mainly upon oral testimony, it is the province of the jury and trial judge to settle the question of preponderance of evidence; and, when the record contains testimony that will support a verdict, an appellate court should not set the verdict aside, although, in so far as could be determined from the record, such verdict might be against the preponderance of testimony. Therefore, if we should hold that the record sustains this assignment of error, inasmuch as it only charges that the verdict was contrary to the great preponderance of the testimony, we would not be authorized to reverse the judgment. However, it is proper to say that, in our opinion, the verdict is amply supported by the overwhelming preponderance of the testimony; but, inasmuch as it is not assailed, except in the manner referred to, we deem it unnecessary to make a full and accurate statement of the facts proved, and shall hereafter make only such reference to the testimony as we deem necessary in stating our conclusions upon the questions of law presented for decision.

The plaintiff lived in Comanche county, defendant Slaughter lived in Mitchell county, and defendant Christian lived in Mills county. The suit was brought in Mills county, the petition stating the residence of each party as above mentioned. On the 15th of September, 1896, Slaughter filed his original answer, which, among other things, contained a general denial and a special plea setting up certain facts as a defense to the plaintiff's suit. On the 21st day of September, 1896, Slaughter filed an amended original answer in lieu of his original answer, filed September 15, 1896, and in said amended answer was a special plea in abatement, alleging, in substance, that the defendant Christian had been released from liability on the contract sued on, and that the plaintiff had made him a party defendant for the fraudulent purpose of giving the court jurisdiction over the defendant Slaughter. It was alleged in this plea that Christian was released from liability as a guarantor, because the plaintiff had made a contract with the defendant Slaughter, changing the time and place for the delivery of the cattle. Defendant Christian answered, and denied liability on the contract, but before the case went to trial he withdrew his answer, and permitted judgment to go against him without objection. The trial court did not submit to the jury the questions presented by Slaughter's plea in abatement, and refused special charges requested by him upon that...