Clarkson v. Whitaker

KEY, Associate Justice. The nature and result of this suit are thus stated in appellant’s brief. “On December 20, 1893, Cyrus Whitaker filed suit in the District Court of Falls County against Fannie R. Clarkson, as survivor of the community estate of herself and B. B. Clarkson, deceased, for.damages for breach by defendant of a contract alleged to have been made between plaintiff and B. B. Clarkson prior to his death, which occurred on April 16, 1891. “Plaintiff alleged that prior to the purchase by B. B. Clarkson of a large body of land in Falls County, it was agreed and understood between them that said land should be bought for the purpose of speculation; and that said Clarkson should advance and furnish the purchase money; and that the plaintiff should contribute his time and services in *487 the management and control of said premises, in preventing trespasses thereon, in malting repairs, and in renting, leasing, surveying and selling same; and that, on final settlement, when all of said land was sold, then the net profits were to be equally divided between them; that is to say, after deducting the cash payment of $250 paid by Clarkson, and the face of two obligations for $5262.80 and $3456, given by said Clark-son for said land, and one-half of the interest on said last named obligation, and all necessary and reasonable and proper expenses in managing, leasing and selling said premises, then one-half of the profits should belong to plaintiff and one-half to said Clarkson. Plaintiff alleges that in pursuance of said contract said Clarkson did on the 14th day of March, 1891, purchase said land, taking the deed in his own name and paying thereof the said sum of $250 cash and executing his two obligations as above stated for the balance; that plaintiff, in the performance of his duty under said contract, did immediately take charge and control of said premises, and devoted his time and efforts in faithfully carrying out his contract during the life of said B. B. Clarkson and until he was forbidden, hindered and prevented by the defendant herein; that while said Clarkson only bound himself to pay the said sum of $8968.80 for said land, yet the same was and is now worth the sum of $16,500; and that it was in recognition of services performed by plaintiff in informing him of the opportunity of buying this tract of land that he was induced to give him one-half of the net profits arising therefrom. Plaintiff further alleged that at the time of the purchase by said Clarkson, he and one Bouse were in possession of the premises by virtue of a lease for a term of five years, ending on December 31, 1893, and that it was agreed between plaintiff and Clarkson that plaintiff should surrender his rights under said lease and assist in acquiring the lease of said Bouse; that after the death of said Clarkson, the defendant, with the assistance of plaintiff, bought out said Rouse’s interest, and that plaintiff did at the same time surrender his rights thereunder, believing that plaintiff would carry out the contract theretofore made; but that shortly thereafter the defendant refused to recognize the above contract, and refused and does still refuse to allow plaintiff to have anything to do with said land and denies plaintiff’s rights thereunder, to plaintiff’s damage $3000. Plaintiff alleges that, but for the refusal of said defendant to recognize plaintiff’s rights under said contract, said land could have been sold, and the net profits and revenues therefrom would amount to more than $8000; that plaintiff’s services from the 14th day of March, 1891, to the-day of-, 1893, are reasonably worth the sum of $100 per month; that his right under said lease surrendered to defendant was reasonably worth the sum of $1500, and by reason of the breach of said contract plaintiff has been further damaged in the sum of $4000. The appellant filed a general exception and general denial. Trial was had on February 26, 1895, which resulted in a verdict in favor of plaintiff for $2150¿ and judgment was entered accordingly.” *488 In view of the verdict, and the testimony tending to sustain it, we find the following conclusions of fact: 1. The contract sued on was made and repudiated and breached, as alleged in the plaintiff’s petition. 2. Up to the time of said repudiation of the contract by appellant appellee had performed his part thereof. 3. The amount awarded to the plaintiff by the verdict is amply sustained by the testimony. That is to say; applying the evidence to the rule given in the court’s charge for the measure of damages, shows that the plaintiff is entitled to recover as much as the verdict allows him. Opinion. — 1. If any error was committed in allowing the witness Levy to testify concerning a previous agreement between himself and the plaintiff to purchase the land together, it affords no ground for reversal, because the plaintiff, without objection by the defendant, testified, in substance, to the same facts. Therefore, the same facts being proved without objection by another witness, the error, if any, is now harmless. 2. The testimony of Judge Goodrich was properly admitted. Clark-son being dead, Whitaker could not testify himself to the contract sued on; and there being no witness to it, any circumstance tending in any degree to support Whitaker’s contention was admissible. This evidence showed that prior to Clarkson’s purchase, he and Whitaker were negotiating with each other, with a view to buying the land together. 3. The third assignment of error asserts the proposition that, notwithstanding the contract and its repudiation by appellant, appellee is only entitled to recover the value of his services rendered under the contract up to the time of its repudiation. We cannot assent to this measure of damages. By the terms of the contract it was intended that appellee should participate equally in whatever benefit might result from the land then, or in future, being worth more than it cost; and this right cannot be curtailed by the wrongful conduct of appellant. 4. Upon the measure of damages the court instructed the jury thus: “First ascertain what was the reasonable cash market value of the land in controversy at the" time of the repudiation of plaintiff’s rights (if any), and from that amount so ascertained you will deduct the amount of purchase money and all necessary expenses paid by either B. B. Clark-son or Mrs. Fannie R. Clarkson for said land, and the balance remaining (if an;') should be divided equally, and one-half would be what plaintiff would be entitled to recover, provided said amount so ascertained does not exceed $4000.” It is complained that the effect of this charge was to exclude from consideration the interest paid on the purchase money notes. We think the court intended and the jury understood the words “purchase money” to include both principal and interest. Besides, if the charge had been worded as appellant contends, it is not probable that the result would have been otherwise; because, giving to the evidence bearing on the measure of damage the construction most *489 favorable to appellant, it is difficult to see how, without disregarding uncontroverted proof, the verdict could have been for a less amount. Delivered February 5, 1896. 5. The fifth and last assignment of error is disposed of by our findings of fact. While it is true that no eye witness to the contract was produced, the evidence of W. A. Patrick shows that B. B. Clarkson admitted to him that he and Whitaker had bought the land together, substantially as claimed by the latter; and there was other evidence tending to sustain the plaintiff’s theory. The judgment is affirmed. Affirmed.