Thomas v. Callaway

• Court: Texas Civil Court of Appeals
• Writing for the Court: W. O. MURRAY
• Citation: Thomas v. Callaway, 251 S.W.2d 921 (Tex. Ct. App. 1952)
• Decision Date: 03 September 1952
• Docket Number: No. 12376,12376
• Parties: THOMAS v. CALLAWAY et al.

Page 921

251 S.W.2d 921

THOMAS v. CALLAWAY et al.

No. 12376.

Court of Civil Appeals of Texas, San Antonio.

Sept. 3, 1952.

Rehearing Denied Oct. 15, 1952.

Chandler & Trimble, Corpus Christi, for appellant.

Charles Whitener, Dallas, Howard G. Hartzog, Port Lavaca, Guittard & Henderson, Victoria, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted December 19, 1950, by Dr. John R. Thomas against David P. Callaway and Robert Callaway (Callaway Bros.) in trespass to try title for possession of 656.77 acres of farm land in Calhoun County, Texas, and to recover damages for alleged waste committed and rents claimed to be owing. On January 18, 1951, Dr. Thomas secured possession of the land through sequestration proceedings instituted by him.

Callaway Bros. answered by general denial, a plea of not guilty and by way of cross-action sought damages, both actual and exemplary, alleged to have been suffered by them by reason of having been ousted from possession of the farm.

The trial was to a jury who answered some thirty-one special issues favorably to Callaway Bros., and judgment was entered thereon allowing Callaway Bros. a recovery of $15,000 actual damages and $5,000 exemplary damages less two items, which reduced the total judgment to $19,061.04.

From that judgment Dr. John R. Thomas has prosecuted this appeal.

Appellant's first two points are as follows:

'Point One. The pleading and the evidence of the appellees, whether true or false, are binding upon them and established a case requiring the court to grant appellant's motion for an instructed verdict.

'Point Two. The trial court, under the pleading and the evidence in this case, should have granted appellant's motion for judgment non obstante veredicto.'

As we understand, appellant by these two points is presenting the contention that appellees have both plead and proved an oral lease contract of a farm for a period of two or more years, and that such a contract is void and unenforcible under the provisions of the Statute of Frauds, Article 3995, Vernon's Ann.Civ.Stats., and that such pleadings and evidence are binding upon appellees as though they had made a judicial confession, and that therefore they cannot recover in this cause.

It is true that appellees did plead that prior to November 1, 1949, they entered into an oral contract with appellant for the leasing of this farm in Calhoun County; that while the lease was for one year it was also agreed and understood that if either party to the contract was dissatisfied he would, before July 1, 1950, notify the other party of his dissatisfaction and the termination of the lease, and that if such notice was not given the lease would thereby be continued for another crop year; that appellant did not notify appellees of any dissatisfaction prior to July 1, 1950, but, on the contrary, led them to believe that they were satisfactory tenants, and that thereby the contract was renewed for another year.

Appellees also plead, in paragraph 7, Section IV of their third amended answer, as follows:

'By virtue of the foregoing, and by virtue of other negotiations and agreements in 1950 between Dr. Thomas and Callaway Bros., said parties entered into a valid and binding oral contract for the continuation of such tenancy and the renting of such land for the crop year of 1951, beginning on or about November 1, 1950, all upon the same terms and conditions and with the same rental provided, with respect to such crop year of 1950. Notwithstanding such agreement for a lease upon said land, Dr. Thomas, acting through his attorney, on or about September 5, 1950, wrongfully and without jurisdiction, notified the Callaway Bros., that he desired possession of such land and thereafter on or about January 18, 1951, wrongfully dispossessed the defendants from said premises.'

Rule 47, Texas Rules of Civil Procedure provides as follows:

'A pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third-party claim, shall contain

'(a) a short statement of the cause of action sufficient to give fair notice of the claim involved, and

'(b) a demand for judgment for the relief to which the party deems himself entitled.

'Relief in the alternative or of several different types may be demanded.'

Rule 45, Texas Rules of Civil Procedure provides, among other things, that all pleadings shall be so construed as to do substantial justice. See Pacific Employers Ins. Co. v. Gage, Tex.Civ.App., 199 S.W.2d 537.

Rule 90, Texas Rules of Civil Procedure, provides in part that, 'Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account'. Pena v. Snare, Tex.Civ.App., 196 S.W.2d 207; Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212.

When appellees' pleadings are given the liberal construction which must be given them under these rules and decisions they were sufficient to plead that a new oral contract was made by the parties prior to September 5, 1950, for the lease of appellant's farm for the crop year of 1951, or that the lease for 1950 was renewed.

There is nothing in the testimony of Pat Callaway which could be construed as judicial admission that he was not claiming under an oral contract made prior to September 5, 1951, for the leasing of the farm for the crop year 1951. The fact that he did not ask Dr. Thomas, in so many words, if he could lease the farm for another year, or that Dr. Thomas did not tell him, in so many words, that he could have the farm for another year, does not constitute an admission that no oral contract for the leasing of the farm for 1951 was made. We overrule appellant's first two points.

Appellant's third point reads as follows:

'In any event, the trial court should have submitted appellant's requested issues on his defenses to the appellee's suit in cross-action.'

Appellant's special requested issue No. 5 reads as follows:

'Do you find from a preponderance of the evidence that the plowing and cultivating, if any, of plaintiff's land by defendants after the flax crop was gathered in 1950 and prior to September 5, 1950, was not the result of the own will or judgment of the defendants, or either of them, rather than the alleged acts and conduct, if any, of the plaintiff, John R. Thomas?'

This specially requested issue was properly refused by the trial court.

The trial court in special issues Nos. 15, 16 and 17, inquired of the jury whether Dr. Thomas by his acts and conduct led Callaway Bros. to believe that they had the place for 1951, and whether they relied thereon, and on such reliance made improvements in good faith. This was a sufficient submission of the matter to the jury, and to have given the issue requested by appellant would have been a submission of the same issues in a different form. Rule 279, Texas Rules of Civil Procedure, provides in part:

'Where the court has fairly submitted the controlling issues raised by such pleading and the evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issue.'

Appellant's fourth point reads:

'There is no evidence whatever supporting the verdict and judgment against the appellant in this case.'

This point is overruled. There is some evidence in this record that Dr. Thomas by his acts and conduct made at least an implied agreement with Callaway Bros. to renew their lease agreement of the farm. Pat Callaway testified that in the spring of 1950 Dr. Thomas told him, 'I like the way you are handling that up there. I had originally planned to have a contract drawn up, but I cannot see any reason for that.' Then Pat Callaway further testified that after they had turned the flax land in 1950; after the flax had been harvested, Dr. Thomas and he rode around the farm and Pat said, 'Doctor, I think that by next year I will have this patch of Johnson grass under control, and if I put flax on this land again next year, I believe that by the year after that we can have cotton and you will not have any flax to worry about.' To this Dr. Thomas replied, 'that will be just fine.' Pat also talked to Dr. Thomas about changing the rows on part of the land for next year, to which Dr. Thomas said, 'Anything you boys want to do is all right with me, I am happy the way you are handling things up there.' Pat also testified that he had a discussion with Dr. Thomas about fertilizing, and Pat stated that the next year he intended to do some fertilizing, to which the Doctor replied, 'That is fine, I would like you to try it.' Pat further testified that about the middle of August, 1950, he told Dr. Thomas that his brother Robert and another boy who had been working on the place had gone into the Air Force, to which the Doctor said, 'That will sure throw a lot of work on you.' Pat replied, 'It may be rough, but I can handle it all right.' Shortly after that time Pat went to Corpus Christi to pay farm rent to Dr. Thomas and there they had a discussion. Dr. Thomas said, 'Cotton sure does pay off a lot more than other crops.' Pat said, 'It sure does. This year I have not had much cotton, next year I think the restrictions will be off and we can plant a lot more cotton and both of us will make more money.' Dr. Thomas replied, 'That will be good. How do you plan to handle all of that land now that the boys are gone?' Pat replied, 'I have got a good man, a negro, and as soon as he gets on the job and moves he will stay on the place, and until that time I am living on the place.' Dr. Thomas replied, 'That is O.K., I was kind of worried how you were going to handle it with the boys gone.'

A witness, Robert Jackson, testified that...