Wood v. Ingram

• Decision Date: 04 September 1924
• Docket Number: (No. 206.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WOOD v. INGRAM.
• Court: Texas Court of Appeals

Page 397

275 S.W. 397

WOOD v. INGRAM.

(No. 206.)^*

Court of Civil Appeals of Texas. Waco.

September 4, 1924.

Rehearing Denied July 6, 1925.

Appeal from District Court, McLennan County; Harvey M. Richey, Judge.

Action by H. C. Ingram against N. Wood. Judgment for plaintiff, and defendant appeals. Affirmed.

W. L. Eason, of Waco, for appellant.

Tom Hamilton and J. A. Kibler, both of Waco, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, H. C. Ingram, against appellant, N. Wood, to recover actual and exemplary damages for alleged wrongful eviction from a certain store house in the city of Waco. The parties will be designated as in the trial court. On January 18, 1919, plaintiff, Ingram, and one Hill rented the store house involved herein from defendant, Wood. They immediately began operating a pool and billiard hall therein. Each partner contributed a part of the furniture and equipment. Shortly afterward said partnership was terminated, and Hill withdrew his share of the furniture and equipment. About that time plaintiff began conducting a cold drink stand, and confectionery, cigar, and tobacco business in said building in addition to his pool and billiard hall business. Plaintiff continued in possession of the premises and paid the rent thereon until August 14th following, when defendant gave him notice to vacate within four days from the date thereof. On August 19th another notice to vacate was served on plaintiff, and immediate possession demanded. On August 20, 1919, defendant sued plaintiff in trespass to try title for title and possession of the leased premises, and on August 22d sued out a writ of sequestration, and caused the same to be served, and plaintiff was by the service thereof ousted from the possession of said premises. Defendant's affidavit for sequestration valued the property at $5,000; alleged that he was the owner thereof and entitled to the possession of the same; and that he feared said Ingram would make use of his possession to injure said property. Plaintiff, Ingram, failed to replevy said property. The officer's return on the writ of sequestration shows that defendant, Wood, replevied the same, and that possession thereof was turned over to him on September 2, 1919. Said suit was dismissed by the court for lack of prosecution on November 24, 1919. Other facts will be stated in connection with our discussion of the issues of law involved in this appeal. The case was submitted to a jury on special issues. Said issues and the answers of the jury thereto were as follows:

"No. 1. Were the premises in question leased to the plaintiff and Jack Hill by the defendant for a year, or by the month or week? Answer: For a year.

"No. 2. From what date was said lease period to begin? Answer: January 18, 1919.

"No. 3. Was the plaintiff conducting a cold drink and confectionery business in said building at the time the writ of sequestration in question was levied by the sheriff on said building? Answer: Yes.

"No. 4. Was the cold drink and confectionery business of the plaintiff injured or damaged by reason of the defendant denying him the right to occupy the premises in question? Answer: Yes.

"No. 5. What would have been the reasonable net earnings or profits, if any, from the operation of the plaintiff's cold drink and confectionery business, as shown by the evidence, during the remaining portion of the time he was entitled to occupy said building, if you believe he was entitled to longer occupy the same under said lease contract? And in this connection you are instructed that you will deduct from said amount, if any, any profits that plaintiff earned or by the use of ordinary diligence could have earned during the remainder of said lease contract. Answer: $875.

"No. 6. Was the act of the defendant in securing possession of the building in question in the manner shown by the evidence malicious? Answer: Yes.

"No. 7. Under all the facts and circumstances in evidence before you, is the plaintiff entitled to recover exemplary damages? Answer: Yes.

"No. 8. What amount of exemplary damages do you find the plaintiff is entitled to recover of the defendant, if any, under all the facts and circumstances in evidence before you? Answer: $500."

The court rendered judgment in favor of plaintiff against the defendant for the aggregate amount of actual and exemplary damages awarded by the jury. The defendant presents the case to us for review by appeal.

Plaintiff, in his first amended original petition filed November 5, 1920, declared on a rental contract for use of the premises here involved for the term of one year from January 18, 1919. He alleged that said contract was made between him and defendant, and that he entered into possession of the premises, paid the stipulated rental as it became due, and continued in possession until ousted and evicted therefrom by defendant. Defendant pleaded that he had no contract with plaintiff alone, but that he did have a contract with plaintiff and one Hill for the use of said premises by them. He alleged such rental contract was from week to week, and that the said tenants were to vacate the premises at the end of any week if he so demanded. During the trial of the case plaintiff, under leave of the court, filed a trial amendment, in which he alleged that he and said Hill as partners rented the premises involved from defendant; that shortly afterward said partnership was dissolved, said Hill voluntarily retiring; and that he individually conducted said business and occupied said premises from such dissolution until he was evicted by defendant. He further alleged that he owned all claims and demands and causes of action against defendant ever had or owned by said Hill growing out of said rental contract. Said trial amendment was filed on April 24, 1924, more than four years after his eviction from the premises. The evidence showed that Hill left or abandoned the rented premises, leaving plaintiff in possession thereof; that plaintiff thereafter was sole owner of the business conducted therein; that he personally paid the rent to defendant; that defendant served notices to vacate on plaintiff individually; that the trespass to try title suit and the sequestration process therein were against plaintiff alone. The evidence further showed a written assignment from Hill to plaintiff of any and all interest in said lease and in this suit. Said assignment recited said Hill's voluntary abandonment of the premises shortly after the making of the lease contract.

Defendant contended that said trial amendment set up a new cause of action, and that such cause of action was barred by the statute of limitation, which statute was duly interposed as a defense by him.

Our Supreme Court, in the case of Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 462, 61 S. W. 707, 708, considered whether an amended petition in which the right to recover was based on allegations showing an implied contract, set up a new and different cause of action from that asserted in the original petition, in which the right to recover was based on allegations showing an express contract. The trial court in that case had sustained an exception to the amended petition on the ground that a new cause of action was set up, and its judgment was affirmed by the Supreme Court. We quote from the opinion of the Supreme Court in that case as follows:

"The courts have found it very difficult to give any general definition of the phrase `cause of action' which would apply to all cases alike, and few courts have attempted to do so. Pom. on Remedies, § 452. However, the following definition will be sufficient for the disposition of the case now before us. In the abstract, a cause of action consists of `the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant on the other.' Rodgers v. Mutual Endowment Association, 17 S. C. 410. When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies `the facts upon which the plaintiff's right to sue is based and upon which the defendant's duty has arisen, coupled with the facts which constitute the latter's wrong. * * *' It is not sufficient that the causes of action be similar in their nature, but they must be essentially identical. Four tests are laid down by which to determine the identity of the causes of action: (1) Would a recovery had upon the original bar a recovery under the amended petition; (2) would the same evidence support both of the pleadings; (3) is the measure of damages the same in each case; (4) are the allegations of each subject to the same defenses?"

In accordance with the ruling of the Supreme Court in that case it is generally held that there is an essential difference between an express and an implied contract. Boyd v. Beville, 91 Tex. 439, 442, 44 S. W. 287; Prichard v. Foster (Tex. Civ. App.) 170 S. W. 1077, 1078, 1079; Wunsch v. Burlington State Bank (Tex. Civ. App.) 248 S. W. 135, 137, 138.

When an express contract is pleaded, on the issue of variance between pleading and proof, it is consistently held that such contract must be proved as alleged. The rules of pleading require the terms of a contract set up and relied on to be correctly stated, and the rules of evidence require that proof offered to sustain such contract shall correspond with the allegations. The following cases cited by appellant in support of his contention here urged merely involve the question of variance. Gammage v. Alexander, 14 Tex. 414, 418; Shipman v. Fulcrod, 42 Tex. 248, 249; Morris v. Kasling, 79 Tex. 141, 144, et seq., 15 S. W. 226, 11 L. R. A. 398; I. & G. N. Ry. Co. v. Reed (Tex. Civ. App.) 189 S. W. 997; Padgitt Bros. Co. v. Dorsey (Tex. Civ. App.) 194 S. W. 1124; Eldridge v. McAdams (Tex. Civ. App.) 24 S. W. 310, 311, 312; Letot v. Edens (Tex. Civ. App.) 49 S. W. 109, 110.

Where, as in this case, an express contract is declared on in a...