Tabet v. Powell
| Decision Date | 18 November 1903 |
| Citation | 78 S.W. 997 |
| Parties | TABET et al. v. POWELL.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; S. J. Brooks, Judge.
Action by David J. Powell against George and Elais Tabet. From a judgment in favor of plaintiff, defendants appeal. Reversed.
W. H. Lipscomb and J. L. Little, for appellants. Ridgeway & Abercrombie, for appellee.
The following contract was executed by George Tabet:
Appellee brought this suit against appellants, alleging "that George Tabet was the agent of E. Tabet; and that George Tabet, as such agent, had authority to execute the contract above set forth; that he had rendered the necessary legal services; that the said G. Tabet represented to plaintiff that he had full power and authority to act for and bind his brother; that he was fully authorized and duly empowered to act for, and to execute said contract for and in the name of, his brother, the said Elais Tabet; and that in fact he did have such authority." It was further alleged that George Tabet guarantied his agency to plaintiff, and personally obligated himself to pay plaintiff whatever should become due him thereunder; that plaintiff accepted such employment; that defendants settled said claims for $4,500; and that, under the terms of said contract, defendants were liable to plaintiff in the sum of $2,250, which they had failed and refused to pay, and prayed for judgment against both defendants for that amount. The court rendered judgment for plaintiff for $1,894, and this appeal is taken.
D. D. Willis, claim agent for the Galveston, Harrisburg & San Antonio Railway Company, testified that he went to Del Rio about the middle of March, where Elais Tabet resided, and called on him, and that the latter refused to talk about the matter of settlement, but referred him to his brother, who, he said, lived in San Antonio, and had a place of business on East Houston street, and told him that any settlement would have to be made through his brother, who had full charge of the matter. There was evidence to show that George Tabet was his brother, and the one who had the store on East Houston street. This is a sufficient statement of testimony to require us to overrule the first assignment of error, which is based on the idea that the testimony of Willis was inadmissible, because George Tabet was not identified as the brother in anything that Elais Tabet said to the witness.
The second, third, and fourth assignments are objections to a statement by witness Testard, "The said George Tabet always acting for himself and his brother Elais Tabet"; the statement by witness Annie T. Conners that George Tabet had stated in her presence to David J. Powell "that his brother had given him full authority to represent him in the settlement of his claim against the Galveston, Harrisburg & San Antonio Railway Company, and to employ counsel in the matter"; and by plaintiff in substance, the same as that of Annie T. Conners. The objection is the familiar proposition that agency cannot be established by the declarations of the alleged agent. This proposition requires no authority to support it; but we may pass over these assignments for the present, because, in the first place, in the above testimony of Willis there was direct evidence of George Tabet's agency in reference to this claim; and, in the second place, the case was tried by the judge without jury, and, in such cases, testimony which is not strictly admissible will not always require a reversal of the judgment, where there is proper testimony to sustain it. We shall refer to this matter further when we come to consider the judge's reasons for his judgment.
The seventh assignment is that there is no evidence in the record which proves or tends to prove that George Tabet was constituted the agent of his brother to employ counsel. This is really, also, what is involved in the eighth, ninth, tenth and eleventh assignments. We think that authority conferred on George Tabet to adjust and settle the claim with the railway company would not extend to authorizing him to make a contract such as is here sued on. But Elais Tabet, according to Willis, told the latter, who had charge of the claims for the railway company, that his brother (meaning George Tabet), who had full charge of the matter, was the one with whom settlement would have to be made. The court, among other things, found that Elais Tabet told Willis that his brother had full charge of the "claim," and this finding seems to have some support in the evidence, as will be explained further on.
The twelfth assignment is, in effect, that there was no evidence of consideration for the contract. The finding of the court on this subject, which we here copy, is supported by the evidence: "That plaintiff, David J. Powell, prior and subsequent to the execution of said contract, rendered valuable legal services and advice to said defendants in prosecution of the aforesaid claim against said railway company, in compliance with said contract, and that said plaintiff never at any time refused to render any services to defendant relative to said claim, and was continuing to render services under said contract, when, some time during the month of April, 1902, defendants, without the knowledge and consent of plaintiff, settled said claim with said railway company for $4,500, $3,788. of which was for personal injuries sustained, and $712 for goods destroyed, in the aforesaid wreck." It is contended by appellees that, because the contract was introduced in evidence without objection, Elais Tabet could not thereafter make any issue as to its having been executed by his authority, notwithstanding his plea of non est factum; and we are cited to Brown v. Chenoworth, 51 Tex. 479. For the reason that Geo. Tabet was a party to the contract and sued thereon, and he did not plead non est factum, it was entitled to go in evidence as to him. Elais Tabet could not have kept it from going in by his objection. Therefore it would have been improper for the court to have taken this as a waiver of his plea.
The fourteenth assignment is founded upon the theory...
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