Myers v. Daniel

WILLSON, O. J. (after stating the facts as above). It appeared from evidence heard at the trial that the writ of attachment was levied September 21, 1925, and that, after the levy'was made, the cotton was left in the field unpicked until the following December. It began to rain about ten days after the levy *87 was made, and continued to do so for about two months. A result of leaving the cotton in the field unpicked and exposed to rain so long was to render it almost valueless. In their brief, Myers and Stone say the only question to be determined here is as to whether Daniel, after the levy of the writ, agreed with 0. C. Hines, one of Myers’ attorneys, it was alleged, that he (Daniel) would have the cotton picked. Myers and Stone insist it appeared Daniel so agreed, and that, because he did, he was estopped from asserting a right to recover of them as he sought to. Testifying as a witness, Hines said that five or six days after the writ was levied: he told Daniel “to get the hands and pick the cotton and gin it and sell it and turn the money over to me, and Mr. Myers' would pay the picking and Mr. Daniel agreed to that, and said he would put hands in there and have the cotton picked, and I saw Mr. Stone coming across the street and told him about it, and that is the last I ever had to do with it.” Daniel, testifying as a witness, said he did not so agree. “I just didn’t tell Mr. Hines,” he said, “that I would put hands out there and pick that cotton.” It is apparent from what has just been said that the testimony as to.whether Daniel agreed to have the cotton picked or not was conflicting. It was the duty of the trial court to determine the conflict, and, under the rule applicable, his determination of it must be respected by this court. Kelley v. Howard (Tex. Civ. App.) 44 S. W. 546; Ford v. Denton (Tex. Civ. App.) 43 S. W. 568; Hunsaker v. Abbott (Tex. Civ. App.) 289 S. W. 127; Kirby Lumber Co. v. Adams (Tex. Civ. App.) 291 S. W. 279; Harpold v. Moss, 101 Tex. 540, 109 S. W. 928. The judgment is affirmed.