Wyche v. Perrin
| Decision Date | 27 January 1950 |
| Docket Number | No. 14162,14162 |
| Citation | 228 S.W.2d 330 |
| Parties | WYCHE v. PERRIN. |
| Court | Texas Court of Appeals |
Bonney, Paxton & Wade, Dallas, for appellant.
Storey, Sanders, Sherrill & Armstrong, and Hugh Steger, all of Dallas, for appellee.
This suit by appellee Sidney Perrin was filed March 14, 1947, against R. W. Daniel, Jr., Fred Smith, James H. Melton and appellant Charles D. Wyche, based upon an alleged verbal contract made by appellee with Smith for the construction of airport runways on land belonging to Mr. Wyche, and to enforce an alleged mechanic's or materialman's lien against the land belonging to Mr. Wyche. In the alternative, the suit was on 'quantum meruit.'
In the original petition plaintiff alleged, in brief, that on or about October 1, 1945, the defendants Wyche and Smith became associated in an airport venture, using Wyche's land as their place of business; and in 1945, in furtherance of that venture, constructed and caused to be constructed upon said property improvements and additions, including hangars and buildings necessary for their airport; and thereafter, to wit, on or about September 1, 1946, the defendants Daniel and Melton became associated with Wyche and Smith in partnership, under the name and doing business as 'Daniel Airport,'-Daniel agreeing to furnish the necessary finances, Smith and Melton to furnish their services, and Wyche the land. And in fulfillment of the agreement by the partners and in reliance thereon, plaintiff entered into contract with Smith for the construction of runways on Wyche's land; and, in pursuance thereof, on or about November 15, 1946, commenced and continued such construction with full knowledge and solicition of Smith and Melton and with actual knowledge by all of the defendants named in the suit, until on or about December 17, 1946, when Smith and Melton personally and in behalf of the partnership, repudiated the contract, thus causing plaintiff to cease his construction. In the alternative, the plaintiff alleged that on or about January 1, 1947, after the runways had been completed, the defendants Wyche and Smith entered into a new and further association for the conduct of the airport business, utilizing the runways previously constructed by plaintiff, and continue to use and enjoy same in furtherance of their airport venture, thus becoming liable to plaintiff for the reasonable value of said runways incident to the airport. In the prayer plaintiff sought judgment against all of the named defendants, jointly and severally, in the sum of $15,317.63, with interest and attorney's fees; and for establishment and foreclosure of his mechanic's lien against the property of defendant Wyche on which the runways were constructed, and for all further relief, either in law or equity, etc.
On November 5, 1948, plaintiff filed his first amended original petition amplifying in detail his cause of action, as in his orginal petition, against the partnership of Daniel, Smith, Melton and the defendant Wyche; again, on January 28, 1949, filed his second amended petition in which he further amplified his cause of action as against all of the defendants and, in addition thereto, alleged that the defendant Wyche was associated with Smith, individually, and as a partner of Daniel and Melton in the joint airport enterprise; that all things done in furtherance of the airport venture were authorized expressly, apparently, and impliedly, by the defendant Wyche; that Wyche and Smith were partners in the airport business, and Smith, as a partner with Daniel and Melton, was authorized to bind Wyche individually and was the agent of Wyche with authority to represent and bind Wyche, and on the occasion in question was acting within the scope or apparent scope of his authority, express or implied. In the prayer plaintiff sought the same relief as in his original and first amended petitions on contract, and alternatively on 'quantum meruit' against Wyche and Smith.
To plaintiff's second amended petition (being his trial pleadings) each of the defendants filed separate answers-except the defendant Melton who did not answer-denying in extenso liability. In addition, defendant Wyche urged several special exceptions to plaintiff's pleadings, all to the effect that same do not show a cause of action against him; answered by special and general denial and plea of the applicable two-year statute of limitation, in that, the cause of action as alleged in plaintiff's original and first amended petitions against him is one in rem; and, in his trial petition filed January 28, 1949 (more than two years after the alleged cause of action accrued), is one in personam,-a new and separate cause of action from that presented in plaintiff's prior petitions; also denied under oath the existence of agency and partnership, jointly or severally, with the other defendants. The trial court overruled all special exceptions and pleas of limitation.
The trial was to a jury and, over defendant Wyche's objection, submitted on special issues which the jury answered, material to this appeal, that: (1) Wyche and Smith were jointly associated in the operation of the airport on property of Wyche: (2) Smith was then acting as the partner of Wyche in negotiating and authorizing the work done by plaintiff on the runways; (3) Smith was also acting as agent, or apparent agent, of Wyche in negotiating and authorizing the work by plaintiff on the runways; (4) Smith, Melton, and Daniel were partners in the airport enterprise at the time the runways were completed; (5) Smith was also acting as a partner of Melton and Daniel and negotiating and authorizing the work to be done on the runways; (6) Smith, Melton, Wyche, and Daniel were not partners in the airport business at the time the work was being done on the runways; (7) Smith was not acting as a partner of Melton, Wyche, and Daniel in negotiating and authorizing the work on the runways; (8) defendant Wyche acquiesced in the work done by plaintiff on the runways; (9) Wyche, after the work was done, used the runways in connection with the airport; (10) the work by plaintiff on the runways was done in a workmanlike manner and is of the reasonable value of $15,317.63; and (11) the land belonging to the defendant Wyche, comprising the airport, was improved by the work done by plaintiff in constructing the runways to the value of $15,317.63.
As a result of the jury verdict, the court, over defendant Wyche's timely objection and subsequent motion for judgment non obstante veredicto, entered judgment in favor of the plaintiff against the defendants Charles D. Wyche and Fred Smith, jointly and severally, for the sum of $17,357.41 and 6% interest per annum from March 24, 1949 (date of judgment) until paid; denied plaintiff a mechanic's lien and foreclosure thereof against Wyche's property and effectively removed and cancelled all clouds on title by virtue of this suit; and decreed that plaintiff take nothing against the defendants James H. Melton and R. W. Daniel, Jr. The defendant Wyche, alone, appealed.
The points of error upon which this appeal is predicated are, in effect: (1) conflict in the findings of the jury, in that, Smith was acting as a 'partner of Wyche' and that Smith was acting as 'the agent or apparent agent for Wyche' in negotiating and authorizing the work by plaintiff on the runways; (2) that there was no evidence, or at least insufficient evidence to...
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