Grant & Easter v. W. T. Smith, 51 Tex. 562

Bonner, Associate Justice. In the view we take of this case, it is only necessary that we notice the sixth and ninth errors assigned.

The sixth error assigned is, that “it was error to charge the jury that they could find any amount for plaintiff for getting out and delivering ties for the use of defendants, without also charging them that they must find that Grant & Easter, or one of them, received pay for the ties so delivered, and that they could only find plaintiff’s share of such sum so received according to the contract as set out in his petition.” The court, in the first branch of the charge, instructed the jury: “This is a suit by the plaintiff against the defendants, based upon a contract in parol, which is specifically set out in plaintiff’s petition.

You will look to plaintiff’s petition to ascertain the terms and stipulations of such contract and the amount claimed by him in this suit.

If you shall find from all the evidence in this case that the contract in reference to the getting out, &c., of railroad ties, set out in plaintiff’s petition, was the true contract entered into between plaintiff and defendants in all particulars, and that plaintiff delivered for the use of defendants the number of ties stated in his petition, and otherwise complied with all its terms, then the plaintiff is entitled to recover of defendants the amount of money that would be due him under the terms and stipulations of said contract for the ties delivered; that is, one-third of the net value of said ties, to which will be added two-thirds of the expense of getting out the same.

And to such amount as you then find due plaintiff, if any, you will add interest at the rate of eight per cent, per annum from the day said sum of money was due.” Under the terms of the contract as set out by the plaintiff himself] it devolved upon him to prove that the defendants had received from Douglas, Brown, Reynolds & Go. payment for ties which were delivered by him, before he was entitled to judgment against them.

In fact, there was testimony tending to prove that the contract between plaintiff and defendants was in the nature of a partnership, in which the risk was assumed by all alike that Douglas, Brown, Reynolds & Co. would make payment. We are of opinion that this phase of the case was not so prominently presented in the charge of the learned judge who presided below as the allegations and evidence may have authorized.

The ninth error assigned is, that “there was error in the charge as to the credit defendants were entitled to for the 1,007 ties which one Calder got credit for.” Under this issue, the court, among other things, charged the jury: “If, however, you find from the evidence that defendants were fully informed as to the condition and their rights to the ties so lost and alleged to have gone to the credit of Calder, by reason of the negligence of plaintiff, and thus lost to them, when they executed the receipt to Douglas, Brown, Reynolds & Co., which is in evidence before you, and that said receipt included said ties or claim for their value, and that the said ties were litigated in a suit between defendants and Douglas, Brown, Reynolds & Co., with the result of a judgment in this court against defendants, then and in such case the legal effect of said receipt and judgment is to estop defendants from denying in this suit that they had the possession and benefit of said ties; and in such case you will make due deduction against plaintiff on account of said ties, but include them in any finding you may make in his favor.” The testimony tended to prove that the litigation between the defendants and Douglas, Brown, Reynolds & Co., in regard to the 1,007 ties, was occasioned by the act of the plaintiff in delivering them upon the wrong

section of the road. The charge of the court made the result of this litigation and the receipt of Douglas, Brown, Reynolds & Co., given by the defendants, conclusive against them that they had received the possession and benefit of these ties, without regard to the question whether, in fact, they did or did not receive pay for the same. In this, we think, there was error which may have influenced the jury. This question should have been left open for their decision under all the facts and circumstances in testimony.

The result of this litigation between Douglas, Brown, Reynolds & Co. and defendants, and the effect of their receipt, which, as a general rule, is open to explanation, was not necessarily wholly inconsistent with the proposition that, in fact, the defendants may not have received payment from Douglas, Brown, Reynolds & Co. Even had defendants recovered judgment against them, it would not inevitably follow that they would have collected the sainé.

The testimony upon this point was, in our opinion, sufficiently conflicting to have required the question to have been submitted for the consideration of the jury, without having made the result of these judgments and the effect of this receipt conclusive against the defendants. For this error the judgment of the court below is reversed and the cause remanded. Reversed and remanded.