Thomas v. Basden & Carrell

• Decision Date: 15 March 1928
• Docket Number: (No. 636.)
• Citation: Thomas v. Basden & Carrell, 4 S.W.2d 336 (Tex. App. 1928)
• Parties: THOMAS et al. v. BASDEN & CARRELL et al.
• Court: Texas Court of Appeals

4 S.W.2d 336

THOMAS et al. v. BASDEN & CARRELL et al.

(No. 636.)

Court of Civil Appeals of Texas. Waco.

March 15, 1928.

Appeal from Dallas County Court at Law; Payne L. Bush, Judge.

Action by Basden & Carrell and others against John H. Thomas, in which defendant filed cross-action against plaintiffs and against the Baker Company. From the judgment, defendant and the Baker Company appeal. Reversed and remanded.

John H. Thomas, Leachman & Gardere, D. W. Burkhalter, and G. Q. Youngblood, all of Dallas, for appellants.

J. E. Newberry and Jimmie MacNicoll, both of Dallas, for appellees.

GALLAGHER, C. J.

Basden & Carrell sued John H. Thomas to recover a balance of $474.96 due on a promissory note executed and delivered to them by him, and to foreclose a mortgage lien on certain personal property for which said note was given. Thomas answered, and alleged that the consideration for said note had failed in part; that said note was given for one Reo truck, 45 head of hogs, 171 swill or garbage cans and certain garbage contracts held at that time by said firm; that they represented to him that 96 of said cans were in service at the Baker Hotel; that they had a contract with the Baker Company, a corporation operating said hotel, to receive and remove therefrom free of charge all garbage accumulating from day to day in the operation of said hotel; that under the provisions of said contract said company agreed not to terminate the same without giving 90 days' notice of such purpose; that he purchased the property for which said note was given relying on such representations; that the said company denied that said contract contained any agreement requiring them before terminating the same to give 90 days' notice of their purpose to do so: and that after he had performed his duties under the same properly and efficiently for about 2½ months, it had without any notice whatever to him refused to deliver any further garbage; that said company also denied that said firm had in service at said hotel at the time of his purchase 96 garbage cans, as claimed by them, but contended that said firm had at that time in service in said hotel only 56 such cans, and that it refused to deliver the remaining 40 cans to him; that said cans were worth $4 each; that he at that time had about 225 head of hogs and was fattening them on garbage; that the garbage from said hotel would feed and fatten 100 head of hogs and increase the weight of each hog 100 pounds in 90 days; that said 100 hogs would by reason of such additional weight increase in value in the aggregate $1,077.30; that the expense of hauling said garbage and feeding it to said hogs would amount to $464 during such period, leaving a net profit of $613.30. Thomas pleaded by cross-action the value of said cans and the net damages so claimed against Basden & Carrell and also against the Baker Company, which he made a party to the suit, and sought recovery on said cross-action against both said firm and said company, or either of them, as he might show himself entitled by evidence. The Baker Company denied that any cans owned by Basden & Carrell and so purchased by Thomas were in its possession, and also denied that its contract with said firm required it to give 90 days' notice of a purpose to terminate the same, and alleged affirmatively that it refused to allow Thomas to continue to remove such garbage because the facilities furnished by him were inadequate and his services in that connection were inefficient and unsatisfactory.

The case was tried before a jury on special issues and findings returned thereon. The substance of said findings may be properly condensed as follows:

(a) That the Baker Company had withheld from Thomas 40 garbage cans of the value of $3 each, which he had purchased from Basden & Carrell.

(b) That said company had agreed with Basden & Carrell to give them 90 days' notice if it desired to terminate said garbage contract; that said company did accept said Thomas to perform said contract instead of said firm.

(c) That Thomas, in the performance of said contract, furnished adequate facilities for handling such garbage and rendered competent and efficient service.

(d) That Thomas, as the direct result of the failure of the Baker Company to give 90 days' notice of its purpose to terminate said contract, suffered damage in the sum of $500.

The court rendered judgment on said verdict in favor of the firm of Basden & Carrell against said Thomas in the sum of $560.76, the full amount remaining unpaid on the note sued on, and foreclosed their mortgage lien on the personal property in part payment for which said note was given. The court rendered a further judgment that Thomas take nothing on his cross-action against Basden & Carrell, and that he recover of the Baker Company the sum of $620, the value of said cans, and the amount of damage found in his favor against said company by the verdict of the jury. Both the Baker Company and John H. Thomas have appealed.

Opinion.

The Baker Company excepted to Thomas' cross-action on the ground that it appeared therefrom that the suit of Basden & Carrell against him was on a note, the same being a liquidated demand, and that his suit against it was for damages for conversion and breach of contract, and therefore unliquidated and in no way related to or connected with the cause of action sued on by Basden & Carrell. The court overruled said exception, and such action is presented as ground for reversal. Thomas' answer and cross-action, while in some respects informal, alleged, in effect, that Basden & Carrell did have in service at said hotel the number of garbage cans sold by them to him, and that their contract with the Baker Company required said company to give 90 days' notice of a purpose to terminate the same before doing so, and Thomas sought recovery thereon against the Baker Company on said theory. Said cross-action further alleged, in effect, that if the facts were not as so stated. Thomas was entitled to a recovery for the loss of his cans and for his damages as an offset to said note and in reconvention against Basden & Carrell. The Baker Company denied both these assertions and denied liability to Thomas on the ground that such representations and each of them were untrue. It also alleged that Thomas had failed to furnish adequate facilities and to render efficient and satisfactory service in the performance of said contract, and that such failure constituted sufficient cause for the termination of the same. The cause of action so asserted against Basden & Carrell, though unliquidated, arose out of and was incident to and connected with the cause of action sued on by Basden & Carrell, and was, under the provisions of article 2017 of the Revised...