Sloan Lumber Co. v. Southern Ornamental Iron Works, 12887.

• Decision Date: 14 October 1933
• Docket Number: No. 12887.,12887.
• Citation: 66 S.W.2d 722
• Parties: SLOAN LUMBER CO. v. SOUTHERN ORNAMENTAL IRON WORKS.
• Court: Texas Court of Appeals

66 S.W.2d 722

SLOAN LUMBER CO. v. SOUTHERN ORNAMENTAL IRON WORKS.

No. 12887.

Court of Civil Appeals of Texas. Fort Worth.

October 14, 1933.

Rehearing Denied December 16, 1933.

Appeal from County Court at Law, No. 2, Tarrant County; P. J. Small, Judge.

Suit by the Southern Ornamental Iron Works against the Sloan Lumber Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Samuels, Foster, Brown & McGee, and A. M. Herman, all of Fort Worth, for appellant.

Richard Owens, of Fort Worth, for appellee.

LATTIMORE, Justice.

Appellee brought suit against appellant alleging assumption by the latter of the payment of an account due by Johnson, a contractor, to the former.

Johnson contracted to erect a building for Dugger, who executed before the building was started a demand mechanic's lien note to the order of Johnson for $15,000. This was admitted to be more than the contract price of $12,500 and was pursuant to the understanding that on completion of the building this would be merged into a loan to be obtained on the security of said building. Johnson transferred the same forthwith to appellant, who furnished the lumber and various other materials for the building, the money to pay the workmen, including an equal amount per day to Johnson, and the money to pay some of the subcontractors and materialmen. Johnson bought the iron material for the building from appellee and same has not been paid for. After the building was completed, two loans were obtained by Dugger, totaling $11,300, into which the said mechanic's lien was extended and the balance of the $15,000 note was released and extinguished. An additional mechanic's lien for $350 was executed in like manner for a garage on same premises and was handled in the same way and included in the lien transferred for the $11,300 extension loans.

The case was submitted to a jury, who answered special issues that appellant assumed the payment of Johnson's debt to appellee and that appellant had been paid $467.50 for the use and benefit of appellee. Judgment thereon was for said sum.

Appellee understood that a loan was to be obtained on the building when completed and was expecting "their money" out of the proceeds of that loan. The negotiation of that loan was handled by appellant and the proceeds delivered to appellant. Appellant moved for a peremptory instruction, was refused, and asserted thereunder that (1) no promise to assume was shown, nor (2) any consideration for a promise.

As to the latter, the certain facts are that appellant obtained a sale by this transaction of a large amount of its merchandise in the erection of the buildings, which is sufficient consideration. Johnson testified that his dealings were with Sammons, manager of appellant, and that he had an understanding with Sammons before he (Johnson) took the Dugger contract that appellant would finance the job. This can be sufficient consideration. Southern Surety Co. v. Texas Pipe Co. (Tex. Civ. App.) 62 S.W.(2d) 534.

As to the former, aside from such inferences as may arise from the transfer of the note to appellant and the conduct of the appellant in assuming the superintendence of the disbursing of the fund represented by the note, the entire evidence in favor of such assumption is the testimony of Johnson, testifying at the instance of appellee:

"Q. Will you state whether or not the Sloan Lumber Company agreed to pay the subcontractors for furnishing material and labor on the job? A. They did." "I transferred the mechanic's lien to them so that they would furnish material and the payroll and take care of the carpenters and painters and electricians and so forth." "The Sloan Lumber Company took over the Dugger job whenever I signed the mechanic's lien to them." "After the Dugger job was completed Mr. Sammons agreed that the Sloan Lumber Company was to pay these subcontractors out of this contract price, yes sir." "I had bought other materials for other jobs from the Southern Ornamental Iron Works (appellee). The Sloan Lumber Company always paid them because I transferred the mechanic's lien to them. They wouldn't finance me the payrolls and material unless they had some kind of security. I transferred the note for that security." Appellee had submitted prices to Johnson before he took the contract and all he "had to do was to notify them to send it over."

It is a difficult question in cases of this kind to determine where testimony fails and conclusions and opinions begin. For example, take the first answer above quoted. The witness may mean to say that Sammons said, "I assume the payment of the subcontractors," or he may mean, "I took what Sammons said to have the effect that Sloan Lumber Company assumed the debts due to the subcontractors." We have, after some debate among us, concluded that the above was the substantial restatement by Johnson of the language of Sammons rather than the legal conclusion of Johnson. Sherman Oil Co. v. Dallas Oil Co. (Tex. Civ. App.) 77 S. W. 961.

Aside from that, we observe that no objection thereto was made by appellant and no error is assigned to its admission, the contention of appellant being that the whole being "incompetent," no judgment can be founded on it. This contention, often discussed in Texas judicial opinions, founds itself principally on the much-quoted excerpt from Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, 537: "While the admission of this testimony was not objected to by counsel for defendants, that fact would be important only in the event its admission was afterwards complained of as violative of a right reserved to defendants. Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force. The admission of such testimony is no talisman to give effect to that which is irrelevant and incompetent to sustain or deny a material issue in a case."

We have examined thirty-six subsequent opinions citing the above. Most of them we believe correct and most of those we do not discuss.

However, some of them apparently make no distinction between evidence which is legally relevant but objectionable for want of proper presentation, and evidence which is not competent in any form—a distinction we believe should prevail. As to the latter, its admission into the record can give it no respectability; it is an alien enemy to justice and, like the leper of old, itself cries out "unclean, unclean," without awaiting banishment.

Not so the former. The subject of the inquiry is proper, but the guaranties of experience, the necessity of expedition, the casualties of carelessness, loose talking, and similar human frailties have led the wisdom of our predecessors to furnish rules which will produce in court the most accurate reproduction of the facts in the most direct and speedy manner. Reverting to the analogy above; the uniform of the occasion may have been neglected, but the body is healthy.

If the opposition is satisfied that the garb is not a disguise, why should not the testimony have value? A copy of a letter is offered. The opposition knows the original is in existence and that an objection will not change the evidence for the original can be produced, and therefore sits silent. The copy should have the same evidentiary value as the original. A witness says, "Smith told me he saw the defendant on last Saturday." Hearsay! But the defendant knows Smith did see him. To object would not subserve justice and would only add to the cost and delay of subpœnaing Smith. He therefore is silent. The testimony should be entitled to a place in the ranks of competent evidence. A witness says, "He agreed to assume my debt." The defendant knows that if he objects and the court sustains him the witness can and will detail a lengthy conversation consuming valuable time of the court and increasing the expenses of government and that the result will be that the true details of the transactions will show such agreement. He therefore makes no protest against the form of the answer. We believe the answer becomes, thereby, probative. It is a practical rule preventing unjust results. Often the question as in this case of whether the answer conforms to correct form of best evidence, or is a conclusion or a violation of some other rule of form, is a close one. If objection had been made the formal error could have been easily and readily cured. To allow the opposition to sit silent and lead his adversary to believe the manner of presentation satisfactory, and then when the doors to correction are closed attempt to push him out of the temple of justice, does violence to our conception of right. Daniel v. Harvin, 10 Tex. Civ. App. 439, 31 S. W. 421. Henry v. Phillips, supra, is manifestly correct. In that case the testimony which came in without objection was that the grantor of a deed after delivery had declared orally that he did not intend the deed to have the effect it...