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(248 S.W.) that a temporary writ of injunction may bejed, for further proceedings not inconsistent granted upon an ex parte hearing, it is also with this judgment, the rule that the right thereto must be clearly established. So far as appears in plain

On Motion for Rehearing. tiff's petition, the contract under which the

[6] In the recent case of Hill v. Brown, defendant had the right to take the gas 237 S. W. 252, decided by our Supreme Court, from the lease contained no provision for a it was held that an injunction will not lie forfeiture of such right for the breach al. if the plaintiff has an adequate remedy at leged. Even if it had contained such a law for the injury complained of; and, as provision, the forfeiture could not be suc held in the decisions cited in our original cessfully claimed unless such provision would opinion, not only is the burden upon the have plainly and clearly given such right. plaintiff to allege facts which clearly show

In Decker v. Kirlicks, 110 Tex, 20, 216 his right to injunctive relief, but such alleS. W. 385, our Supreme Court, speaking gations must be sufficiently certain to negathrough Chief Justice Phillips, said:

tive every reasonable inference arising from “Forfeitures are harsh and punitive in their the facts pleaded, from which it might be operation. They are not favored by the law, deduced that he may not, under other supand ought not to be. The authority to forfeit (posable facts connected with the subject, & vested right or estate should not rest in pro- be entitled to that relief. Fisions whose meaning is uncertain and ob The purpose of the present suit was to rescure."

scind and terminate the contract alleged in

the petition and to thus deprive the defendIn Gillis v. Rosenheimer, 64 Tex. 243, the ant of the rights originally vested in it, under following statement was quoted with ap- and by virtue of the terms of the contract. proval:

That right was a vested right. The plain"The rule of pleading, that the statements of that the defendant had abandoned the con

tiff's petition was not based upon the theory a party are to be taken most strongly against tract, but solely upon the theory that it himself, is re-enforced in injunction suits by the further requirement that the material and had breached it, and that, by reason of such essential elements which entitle him to relief breach, defendant's rights under the contract shall be sufficiently certain to negative every had terminated. To so lose such rights would reasonable inference arising upon the facts so be in the nature of a forfeiture, as alleged in stated, from which it might be deduced that he the petition, if not strictly and technically might not, under other supposable facts con a forfeiture, as plaintiff now insists. Dected with the subject, thus be entitled to re The petition contained no allegation that lief."

'the defendant wag insolvent and unable to

respond in damages, and no sufficient showMany other decisions, substantially to the ing that the breach of the two provisions in same effect, might be cited, such as Emde the contract set out in the petition had reF. Johnson (Tex. Civ. App.) 214 S. W. 575, sulted or would result in irreparable injury writ denied; Birchfield v. Bourland (Tex. to the plaintiff. By virtue of the writ grantCiv. App.) 187 S. W. 422; Collins v. Citi ed, the defendant was summarily, and withzens' State Bank (Tex. Civ. App.) 241 S. W. out an opportunity to be heard, deprived of 633, and other authorities there cited. all rights vested in it, under the contract

14,5] It is reasonable to suppose that the pending the hearing of the case on its merits,
contract may contain some other stipulation and that, too, merely upon plaintiff's verified.
which would deny to plaintiff the harsh petition,
remedy of summary forfeiture and ouster, [7] Furthermore, it is a familiar principle
which was accorded by the temporary writ that the writ of injunction may be used to
of injunction issued; and in order to refute prevent injuries but cannot afford a remedy
such a hypothesis the entire contract should for injuries already intiicted. Whitaker v.
have been set out in the petition. Further- Dillard, 81 Tex. 359, 16 S. W. 1084. In plain-
more, there is an absence of a sufficient show- tiff's petition, following allegations of breach
ing of irreparable injury in the petition for of the provisions of two of the para-
the granting of such extreme measures as graphs of the contract set out, and an al-
Was accorded by the order complained of, leged forfeiture of all of defendant's rights
which had the effect to temporarily annul the under the contract by reason of such breach-
contract and terminate defendant's rights es, are the following allegations with respect
thereunder, and under which the defendant to threatened injuries in the future, which
Was operating, merely for an alleged breach are the only allegations of threatened future
of the contract

, upon no other evidence than injuries:
the verified petition, and with no opportu "It is further shown to the court that, not-
nity given to the defendant to be heard in withstanding this, defendant by its agent and

servants had heretofore entered upon said premAccordingly, the judginent of the trial ises and has willfully and maliciously torn up and wurt is reversed, the temporary writ of in- destroyed the connections made by plaintiff to Junction is vacated, and the cause is remand- plaintiff's said lease upon said property for the

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answer thereto.

purpose of utilizing casing head gas therefrom, 3. Contracts Om 175(3) - Evidence held suffi. and the said defendant, its agents, and serv cient to show party to contract agreed to ants are now threatening to re-enter upon drill well having outside diameter of 8 inches said premises and to again tear up and discon with casing set. nect plaintiff's said connections and to take the Evidence in an action on an ambiguous conproperty of plaintiff, to wit, casing head gas, tract to drill an 8-inch water well with casing by force."

set held suficient to show that the party intend

ed that a well be drilled which with the casing It clearly appears that, by virtue of the set had an 8-inch outside diameter. terms of the two paragraphs of the contract set out, the defendant had the exclusive 4. Trial em 215—Special issue statute author.

izes submission of explanations and definiright to go upon the lease and to make such

tions of legal terms so jury may render ver. pipe connections with the wells as might

dict on issue. be necessary to utilize casing head gas there

The special issue statute authorizes the from, and to that end to remove any such submission of such explanations and definitions pipe connections as plaintiff might make for of legal terms as shall be necessary to enable the purpose of taking casing head gas from the jury properly to pass upon and render a the wells for its own use, during the life of verdict upon the issues. the contract. The petition contains no alle 5. Appeal and error Om 216(1)-Objection to gation to the effect that the defendant has

submission of special issues held not tenable threatened or probably will breach the con in absence of request for giving of prepared tract in the future, as plaintiff alleges has instruction. been done in the past. Allegations in the A defendant who fails to prepare and repetition plainly imply that plaintiff has al-quest a proper instruction to be given in ready claimed a forfeiture of all of defend connection with the submission of special isant's rights under the contract on account of sues to the jury cannot complain of the issues alleged breaches of its provisions, and by as submitted. reason of such claim has ousted defendant of possession of the lease and has begun to

Appeal from Brewster County Court; M.

S. Burke, Judge. take the output of the wells, to the exclusion of the defendant. And the injunction sought

Action by J. S. McSpadden against the and granted was to restrain defendant from Galveston, Harrisburg & San Antonio Railany interference with plaintiff in its present way Company. Judgment for plaintiff, and possession and use of the wells, the only al- defendant appeals. Atfirmed. leged basis for which was the alleged prior W. B. Teagarden, of San Antonio, and W. breaches of the contract by the defendant. Van Sickle, of Alpine, for appellant. We express no opinion as to the merits of

Brion Montague, of Alpine, for appellee. the case. What we have said applies only to the issue of plaintiff's right to the issuance HIGGINS, J. Appellee brought this suit of the temporary writ of injunction.

to recover in debt upon contract, and from an The motion is overruled.

adverse judgment the defendant appeals.

On November 1, 1921, appellee wrote to J. E. Marshall, water service foreman of appellant, a letter as follows:

“Alpine, Texas, Nov. 1st, 1921. GALVESTON, H. & S. A. RY, CO. v.

"Mr. J. E. Marshall, 311 N. Kansas St., El McSPADDEN. (No. 1412.)

Paso, Texas-Dear Sir: I have made inquiry (Court of Civil Appeals of Texas. El Paso.

at the rock crusher, five miles west of Alpine, Feb. 8, 1923. Rehearing Denied

Texas, as to whether the G., H. & S. A. Ry. March 1, 1923.)

Co. wanted a well drilled at that place, and

they told me that they were almost sure to 1. Contracts 198(6)-Contract to drill 8- Lave a well in the near future but they did inch well and set casing held ambiguous. not have the necessary authority to have it

The contract to "drill an 8-inch water well” drilled. I was referred to you as the man to and set the necessary casing held ambiguous, see. I have a good gasoline machine, capable but not necessarily meaning that the contractor of drilling to a depth of a thousand feet. I was required to drill a hole and get 8-inch cas. can drill you an 8-inch hole for four ($4.00) doling therein, requiring hole of 912 inches in lars a foot for the first two hundred feet, and diameter.

a dollar raise for the next hundred and another

dollar raise for the fourth hundred and so on. 2. Evidence C450(7)-Parol proof held ad- I am to set all casing, piping, all of which is

missible to explain intention of party to am to be furnished by you, and test the well for biguous contract.

the above annount. I will be able to have my A contract to "drill an 8-inch water well" machine on the ground in about two weeks and set casing was ambiguous and uncertain, after we sign a contract.

Trusting that the and evidence aliunde was admissible to show above terms are satisfactory and that you will that it was the intention of the parties to drill immediately send a contract to sign, I am, a well which with casing set had an 8-inch “Yours truly, outside diameter.

“[Signed] J. S. McSpadden."

(248 S.W.) Subsequently appellant tendered a written | been given. This is predicated upon the ascontract to appellee, which was executed by sumption that the contract was plain and him and appellant's authorized agent, unambiguous, and required the appellee to whereby appellee, for a stipulated compensa- drill a hole and set 8-inch casing therein, tion of so much per foot agreed to "drill an which the evidence shows has an inside di8-inch water well on property of the first ameter of 8 inches, and requires a hole about party at Toronto, Tex., to such depth as will 912 inches in diameter. The contract obliproduce in the judgment of first party's di- gated McSpadden to "drill an 8-inch water vision engineer a sufficient quantity and qual. well," and set the necessary casing. The ity of water. The second party will set the contract does not specify the diameter of the necessary casing to be furnished by the first casing to be set. party."

[1-3] We do not regard the language of the Acting under this contract McSpadden contract as necessarily meaning the construcdrilled a hole to a depth of 236% feet, and tion given to it by appellant, but that it is with an 8-inch bit spread to 842 inches, ambiguous and uncertain. This being true, when appellant's agent notified him that it evidence aliunde was admissible to show, as would not accept the well in its then condi- contended by appellee, that it was the intion, and would withhold payment until he tention of the parties by such language to recomplied with his contract by setting 8-inch quire appellee to drill a well, which, with the casing, and that any further work by Mc- casing set, had an 8-inch outside diameter. Spadden was at his own risk. Upon receipt The evidence is ample to show that this was of this advice McSpadden ceased operations the purpose and meaning of the parties. In and brought this suit to recover the agreed the first place the proposal of appellee was compensation according to the depth be had to "drill an 8-inch hole" for a specified condrilled.

sideration. Without any intermediate negoThe controversy arose out of the contention tiation appellant prepared and submitted the of appellant that the contract required Mc- contract in response to that proposal, basing Spadden to drill a well and set 8-inch casing the consideration upon the price submitted in therein, which, with the casing set, would the proposal. It is evident that the contract have an inside diameter of 8 inches, and the tendered was intended as an acceptance of contention upon McSpadden's part that he McSpadden's proposal. It is further shown complied with his contract by drilling a hole by the evidence that a well does not necessa8 inches in diameter and his readiness to set rily require any casing; that such necessity in such hole the proper casing.

depends upon the formation through which The case was submitted to a jury upon the well passes. Had the formation been of special issues which, with the answers, are a character which rendered casing unnecesas follows:

sary, there could be no question of McSpad

den's compliance with his contract. It is "First Special Issue.

shown, too, that when the well reached the "Did the plaintiff, J. S. McSpadden, comply depth of about 170 feet appellant then dewith the terms and conditions contained in the manded of McSpadden that he set the 8-inch aforesaid contract? "Answer: Yes.

casing, and had he done so it is not denied "If your answer to the foregoing special is- that thereafter it would have been impossible sue is in the affirmative you will then answer to drill a hole which would have contained special issue No. 2. But if you answer said 8-inch casing. This is important as showing issue in the negative you need answer no fur- that at 170 feet appellant demanded that

McSpadden set casing which would incapaci"Second Special Issue.

tate him from thereafter drilling the hole of "Did the defendant, the Galveston, Harris- the size that appellant contends he was burg & San Antonio Railway Company, com- bound to drill. It shows a construction of ply with the terms and conditions of the afore the contract by appellant variant from that said contract?

for which it now contends. There are other "Answer: No.

facts and circumstances which tend to sup"If your answer to the foregoing special issue port the appellee's contention upon this phase is in the affirmative, then you need answer no of the case, but it is unnecessary to advert further; but if your answer is in the negative, then you will answer special issue No. 3.

thereto. We hold that the contract was of doubtful meaning in the particular indicated,

and the evidence sufficient to support the ap"Special Issue No. 3.

pellee's theory of the true meaning and in. "What damage, if any, has the plaintiff sustained by reason of the failure on the part of

tention of the parties. the defendant to comply with the terms and

[4, 5] Complaint is made of the submission conditions of the aforesaid contract?

of issues 1 and 2. The first objection urged Answer: $982.50."

is controlled by what has heretofore been

said. The other relates to the form of the The controlling issue in the case arises up issues, and in substance is that they submit on the appellant's insistence that a peremp- issues of law as well as fact, and in effect tory instruction in its favor should have permits the jury to declare the law and apply


it to the facts without chart or compass., premises described in the petition, and that The defect was one of omission. As a mat- Johnson was still the owner of the notes and ter of fact the only controverted issue in this the payee therein. case was as to the meaning of the contract The defendant, Newberry, admitted the exin the particular discussed. The special is-ecution and delivery of the notes to Johnson, sue statute authorizes the submission of such and admitted that he bought the premises explanations and definitions of legal terms from Johnson as alleged in the plaintiff's as shall be necessary to enable the jury to petition, and alleged that he had paid $2,500 properly pass upon and render a verdict upon in cash on the purchase price of the place, the issues. There was no controversy as to and executed the notes sued on at the same what the parties did under the contract. time in part payment. He further pleaded Whether they complied with the contract de in his answer that, at the time of said transpended upon the intention and meaning of action and at the time of the filing of the the ambiguous feature. Had an appropriate suit to foreclose said notes, he was a minor instruction been given in connection with the under the age of 21 years. That he became issues for the jury's guidance in determining 21 years of age September 17, 1921, and whether the contract had been complied with he elected to disafirm the contract of puraccording to the true intention and meaning chase aforesaid, and prayed for the cancellaof the parties at the time it was executed, tion of the notes declared on by plaintiff and the objection now urged by appellant would to recover from plaintiff the $2,500 in cash be wholly without merit. The appellant that had been paid on the place. In connecasked no such instruction. It was its duty tion with that pleading the defendant, Newto prepare and request a proper instruction. berry, tendered the plaintiff a deed to the Having failed to do so it cannot complain of premises, duly executed and acknowledged by the omission.

Newberry and his wife; the consideration Some rulings upon evidence are complained expressed in the deed being the cancellation of. We think they present no error, but, if

of the notes sued on. erroneous, they are harmless.

Plaintiff Johnson answered by a first supAll other questions are controlled by the plemental petition, in which it was alleged views expressed above.

that defendant Newberry was a married man Affirmed

at the time of the execution of the notes, and did not disclose the fact that he was a minor, but represented that he needed the property

for a home for himself and wife. That plainNEWBERRY V. JOHNSON. (No. 10073.)* tiff relied upon and believed said representa(Court of Civil Appeals of Texas. Fort Worth. tions to be true, and believed defendant NewDec. 9, 1922. Rehearing Denied Jan. 20,

berry to be 21 years of age and a married 1923.)

man, and believed that he was purchasing

the property for a home, and that the same Infants 10_Married minor held entitled to

was necessary for himself and wife, and rescind purchase contract of home.

that so believing and relying, he sold and A marrier minor, who purchased a home, held entitled, on attaining his majority, to re- original petition, and as part payment there

conveyed the property described in plaintiff's scind the contract and on returning the prem

That ises to recover his payment, less the reasona- for received the three notes sued on. ble value of their use.

defendant moved into the said house, and

occupied the same as a home, and continued Appeal from District Court, Taylor Coun- to occupy the same until a date unknown ty; W. R. Ely, Judge.

to plaintiff. Plaintiff further alleged that

Newberry is an able-bodied, strong, young Action by C. L. Johnson against J. L. Newberry. From judgment for plaintiff, defend- man, with a reasonable earning capacity of

$100 to $150 per month, and that his status ant appeals. Reversed and remanded.

and condition in life makes it fit and proper Ben L. Cox, of Abilene, for appellant. for him to own and acquire a homestead

D. M. Oldham and C. G. Whitten, both of such as the one in question for himself and Abilene, for appellee.

wife, and it is averred that the premises

mentioned were in fact necessary for defendCONNER, O. J. The appellee, C. L. John- ant. And it is further alleged that defendson, sued the appellant J. L. Newberry, in ant committed a fraud on plaintiff by procurthe district court of Taylor county on Au- ing said property without disclosing the fact gust 20, 1921, upon the two vendor's lien that he was a minor. notes described in the petition, and for fore The case was tried before a jury, to which closure of a vendor's lien on certain prem- was submitted special issues. The answers ises situated in Abilene. It was alleged that of the jury to the special issues were to the Newberry gave the notes sued on as pur- effect that defendant, Newberry, at the time chase-price notes in part payment for the lhe purchased the property was under 21 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.) years of age, but that the deed had not been , use of himself and family does not in this obtained by him through fraud, as the term case preclude him from all relief. "fraud" had been defined in the court's A case that seems to us controlling is that charge. The jury further found that the of Peck v. Cain, 27 Tex. Civ. App. 38, 63 S. property was a “necessary," as that term had W. 177, decided by the Court of Civil Apbeen defined in the charge. Upon this verdict peals at San Antonio, writ of error refused. the court rendered a judgment for the plain- In that case it appears, among other things, tiff, Johnson, against the defendant, New- that Cain leased to Edward D. Levy, a marberry, for the amount due upon the notes, and ried minor, a dwelling house on Madison foreclosed the vendor's lien against the street in the city of San Antonio for a term premises, and also against Newberry on his of 2 years, beginning December 14, 1889, cross-action for the return of the $2,500, and at the rate of $55 per month; that Levy paid defendant, Newberry, has appealed. for one month in advance and moved into

The court in his charge to the jury thus the house, placing therein certain household defines the term "necessaries":

furniture, but soon thereafter abandoned the "The term 'necessaries' is not confined to ities cited, that infant contracts are not void

property. It was there held, upon authormerely such things as are required for a bare existence, but include those things without on account of nonage, but all of them are which the individual cannot comfortably live, voidable, with the exception of contracts and which are useful and suitable and necessary made in pursuance of statutory authority. and proper for his support, use, and comfort and it was further said that the marriage in life, taking into consideration the minor's of the infant does not remove his disability status and condition in life. And where the and render his general contracts more bindinfant is a married man, he is permitted to furnish his wife with necessaries, and you will ing, but that the capacity of an infant hustake into consideration those things which are band to contract for necessaries is enlarged necessary for husband and wife, as well as for by his marriage, and that he will be bound the husband alone, and by the term 'neces- for the reasonable necessaries for his famsaries' as applied to the husband is meant such ily as well as for himself. It was further things as the husband should supply to his said: family, and which are suited to their condition and station in life, their needs and wants, in so "There are some authorities that hold that far as his ability will permit.”

the promissory note or other written contract of the infant, although given for necessaries,

is void; but the better authorities hold that an Appellant criticizes the charge in that, infant may be held liable on his express conas is insisted, it is on the weight of the evi-tract for necessaries, when the contract is of dence and calculated to unduly influence such a form as that the consideration may be the jury to conclude that the premises consti- inquired into, and the amount agreed to be tuted a "necessary” because “useful and suit paid is simply the reasonable value of the necable” for a home, without regard to whether essaries, and the infant may show that the defendant was able to pay therefor, and also agreed sum is in excess of the reasonable value

of the necessaries, and have it reduced to the in that it is calculated to lead the jury to be

proper sum. The last-named ruling has been lieve that it was the duty of defendant to adopted in Texas, and in the case of Askey v. acquire and own a home as a necessity, and Williams, above cited, it was said: “We apexcludes the idea that he might rent or lease prehend, however, the better doctrine to be such a home, and that it nowhere instructs that an infant may make an express written the jury that the premises would not be

contract for necessaries, upon which he may necessary if purchased by defendant for spec- to be paid was unreasonable, he can reduce

be sued, but that, by showing the price agreed ulative purposes and not as a place for the recovery to a just compensation for the abode.

necessaries received by him.' So far the auIt seems evident that the trial below pro- thorities are clear, and, had the minor occupied ceeded upon the theory that, if it should be the premises during the year 1900, the judgment found by the jury that at the time of the would clearly be right; but he was in the house purchase the house and lot in controversy which he had paid in advance, and the ques

for only one part of a month, for the whole of constituted a necessary within the meaning tion presents itself, can an infant be held liaof the court's definition, then the defendant ble for the rent of a house for a longer time Newberry would not be entitled to disaffirm than he actually used it?” his contract or to recover the $2,500 in cash that he paid. Upon this theory of the case The court answered the question presentpossibly the court's definition of “necessa- ed in the quotation just made upon reasonries" may be subject to criticism, although we ing and authorities which we approve, but are not inclined to view the criticisms urged which need not be here repeated, that the as well taken. We are of the opinion, how- infant could disaffirm his contract and would ever, that the case was tried upon a mistaken not be liable for the rent of the house for a theory. The fact that at the time of ap- longer time than he actually used it. We do pellant's purchase the dwelling and lot in not find where the case of Peck v. Cain has question as a reasonable necessity for the been overruled or modified, and on that au

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