Warnock v. Mills

• Decision Date: 23 February 1927
• Docket Number: (No. 752-4704.)
• Parties: WARNOCK v. MILLS.
• Court: Texas Supreme Court

291 S.W. 850

WARNOCK v. MILLS.

(No. 752-4704.)

Commission of Appeals of Texas, Section B.

February 23, 1927.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by R. M. Warnock against Mrs. Love Webb Mills and another. Judgment for plaintiff against defendant named was reversed and rendered by the Court of Civil Appeals (284 S. W. 676), and plaintiff brings error. Judgments of district court and Court of Civil Appeals reversed, and cause remanded to the former for a new trial.

Joe Montague, of Ft. Stockton, Brian Montague, of Del Rio, R. D. Blaydes, of Ft. Stockton, and Kemp & Nagle, of El Paso, for plaintiff in error.

W. A. Wright, of San Angelo, Howell Johnson, of Ft. Stockton, and McKenzie & Loose, of El Paso, for defendant in error.

POWELL, P. J.

The opinion of the Court of Civil Appeals fully states the nature and result of this case. See 284 S. W. 676. Plaintiff in error, in the petition for the writ, summarizes the case as follows:

"This was a civil suit, brought in the district court of Pecos county, Tex., by R. M. Warnock, plaintiff in said district court, the original petition being filed in said district court on February 19, 1923, the only defendant in said suit as originally filed being the said Mrs. Love Webb Mills, defendant in error herein, and in said original petition the plaintiff sought to recover of the said defendant the sum of $2,200, being 10 per cent. of the value of a certain crop alleged to be due the plaintiff under a contract of employment with the defendant, and in said petition the plaintiff alleged that `on or about the 1st day of October, 1920, the defendant, being then and there the owner of a large farm near the city of Ft. Stockton, in Pecos county. Tex., employed the plaintiff to manage and operate said farm for a term of 12 months beginning October 1, 1920, and terminating October 1, 1921; that in consideration of the services to be performed by the plaintiff in his capacity as manager and foreman of said farm, the defendant then and there contracted and agreed to pay him for the term of said employment a salary of $300 per month, payable monthly as it accrued, and in addition thereto 10 per cent. of the value of all crops and produce to be raised on said farm during said term.'

"On November 1, 1924, the plaintiff filed his first amended original petition in which he joined Robert D. Webb as party defendant, in which amended petition it was alleged that `in this connection (plaintiff) alleges that said R. D. Webb, at all times hereinafter complained of, was part owner of the lands covered by the contract of employment hereinafter complained of, and further alleges that as part owner he is equally liable with his codefendant to plaintiff under the contract of employment hereinafter alleged. That heretofore, to wit, on or about the 1st day of October, 1920, the defendants, being then and there the owner of a large farm near the city of Ft. Stockton, in Pecos county, Tex., employed the plaintiff to manage and operate said farm for a term of 12 months beginning October 1, 1920, and terminating October 1, 1921; that in consideration of the services to be performed by the plaintiff in his capacity as manager and foreman of said farm, the defendants then and there contracted and agreed to pay him for the term of said employment a salary of $300 per month, payable monthly as it accrued, and in addition thereto 10 per cent. of the value of all crops, and produce to be raised on said place during said term.'

"In both the original and amended petitions above referred to it was admitted that the plaintiff had been paid the monthly salary, but in both petitions it was alleged that the crop raised on said premises for the year 1921 was of the value of $22,000, and plaintiff sued for 10 per cent. of the value of said crop. Both of the defendants, amongst other defenses, pleaded the statute of limitations, and the peremptory instruction was given in favor of the defendant Webb upon the theory that as to him the suit was barred by the two years' statute of limitations. The case as to Mrs. Mills was submitted on special issues, in response to which the jury found that the contract was that Mrs. Mills agreed with the plaintiff, Warnock, that he should receive as part of his compensation as the manager of the farms of both defendants for the year beginning October 1, 1920, and ending October 1, 1921, 10 per cent. of the value of the crops produced on the defendants' farms during said year, and that the value of such crops was $22,000. The defendant Mrs. Mills asked for a peremptory instruction in her favor on the ground that more than two years had elapsed after the cause of action arose before the first amended original petition was filed, which instruction was refused by the court. The court, on the verdict of the jury, entered judgment for the plaintiff against the defendant Mrs. Mills for $2,200, with interest thereon at 6 per cent. from October 1, 1921, and also entered judgment in favor of the defendant Webb.

"The Court of Civil Appeals on May 13, 1926, reversed and rendered the case in favor of the defendant Mrs. Mills, holding that the amended petition set up a new cause of action and that it was barred by limitation. The appellee, Warnock, plaintiff in error herein, in due time, to wit, on May 27, 1926, filed his motion for a rehearing, complaining of all of the errors herein complained of, which motion for a rehearing was by the Court of Civil Appeals overruled on June 3, 1926."

The first assignment of error in the application, submitted as a proposition, read as follows:

"The Court of Civil Appeals erred in holding that the amended petition set up a new cause of action."

We think this assignment must be sustained. As stated by counsel for plaintiff in error here, it is apparent from the record before us:

"That the amended petition did not in any material respect change the allegations contained in the original petition in so far as they affect the liability of the defendant, Mrs. Mills, or the rights of the plaintiff against her. It did not, as suggested by the appellants' counsel in her brief, involve any other farms or any other crops than those covered by the original petition. The only addition was the allegation that by reason of an ownership in the land in question, or some interest therein, the additional defendant Dr. Webb was liable equally with the defendant Mrs. Mills."

In other words, each petition related to the same subject-matter. The amount of money sought in each petition was the same. The only effect of the amendment was to hold Dr. Webb jointly liable. Recovery could have been had, so far as the allegations therein are concerned, under either petition, against Mrs. Mills for the full amount sued for. She was in possession of those alleged partnership farms and managing them. She had the right to employ an overseer. The one question involved in this assignment is whether or not the effort to hold Dr. Webb jointly liable had the effect of stating a new cause of action against Mrs. Mills also. In other words, does the mere addition of a defendant so essentially change a cause of action as to the original defendant as to constitute it a new cause of action against the latter?

We think not, where, as in the case at bar, the nature of the demand against both is the same as against the one, and where the subject-matter is identical. In this case, Mrs. Mills was liable for the entire amount sued for anyway, if the allegations of either petition be true. Her liability to the plaintiff was not increased by the amended petition. Warnock may suffer, of course, by not being able to have a judgment against Dr. Webb also, but his own delay accounts for such a situation.

That our conclusions, just stated, are correct, is shown by the following quotation from an opinion of our Supreme Court in the case of Thompson v. Swearengin, 48 Tex. 555:

"The other ground is not, to my mind, so entirely void of force; and if the court was controlled in matters of this kind by the technical rules of the common law, it may be that this objection would warrant the judgment. Unquestionably the original petition, if it does not distinctly aver, certainly implies that the account declared upon was contracted with the plaintiffs J. W. and Cyrus Thompson, as partners, doing business in the firm name of A. B. Thompson & Co.; while the amended petition alleges that it was contracted with A. B., J. W., and Cyrus Thompson, as partners, under the like firm name. A variance of this character, between the contract described in the petition and that offered in evidence, has frequently been held fatal. Chitty's Pl. 306; 4 B. & A. 274. But evidently the correction, by amendment, of any misdescription that would be fatal on an objection for variance between the allegata and probata, cannot be held to be a new suit. And while there are decisions of this court that tend strongly to support the objection (Henderson v. Kissam, 8 Tex. 46; Whitehead v. Herron, 15 Tex. 127 ), the contrary seems to have been directly decided in the case of Pridgen v. McLean, 12 Tex. 420, and to be maintained by other later decisions (Williams v. Huling, 43 Tex. 113; McIlhenny v. Lee, 43 Tex. 205; Lee v. Boutwell, 44 Tex. 151; Kendall v. Riley, 45 Tex. 20). Both the original and amended petition alleged that the account was made with A. B. Thompson & Co. It was properly verified, and presented to the administrator as an account due that firm. It was payable to the plaintiffs, and they alone were authorized to bring suit upon it when the original petition was filed. The amended petition did not declare upon a different account, or allege a liability on it to different parties, but corrected the statement in the original petition, in regard to the parties composing the firm of A. B. Thompson & Co., with whom it was contracted. By this change, we hold, under the authority of the previous ...