Palmer v. Guaranty State Bank of Alto

WILLSON, C. J. (after stating the facts as above). The dispute between Palmer and the other parties was as to whether the 10-year lease or the 20-year lease executed by him became effective by a delivery thereof to Crawford. The jury having found that the 20-year lease was delivered, the court undertook by his judgment to establish it as the contract binding on the parties. It will be noted, on referring to the statement above, that in its pleadings the bank described the lease as one for 20 years from April 1, 1920, and did not undertake to state its terms, while McLendon alleged that the bánk represented the lease it sold to him and Norwood as being for 20 years from said April 1, 1920, at §20 per month, and as providing that it might be extended for 20 years longer at §25 per month. In the court’s judgment the lease was described as for 20 years from said April 1, 1920, at §20 per month for the first 5 years, $25 per month for the next 10 years, and $33.33% for the last 5 years. The pleadings and judgment being as stated, we think it is plain that appellant’s contention that the judgment was without support in the pleadings should be overruled. Rule 62a for the government of Courts of Civil Appeals; Taylor v. Merrill, 64 Tex. 494; Bank v. Stephenson, 82 Tex. 435,18 S. W. 583; Parks v. Sullivan (Tex. Civ. App.) 152 S. W. 704. We think it is also clear that Palmer’s contention that the finding of the jury that he delivered the 20-year lease to Crawford was without testimony to support it should be overruled. While there was no direct testimony that the instrument was so delivered, and Palmer testified it was not, there was testimony that Crawford was in possession of the instrument and deposited it with the Alto State Bank as collateral security for the payment of money it loaned to him, and other testimony which the jury had a right to construe as tending to show a delivery of the instrument. And as we view it, there is no more merit in the contention that the trial court erred, in that, it is charged, he admitted parol evidence tending to vary the terms of the written contract between Palmer and Crawford. There was no dispute between the parties as to the terms of either of the leases, nor was any effort made to vary their terms. The sole issue was as to whether the 10 or 20 year lease as written evidenced the contract between Palmer and Crawford. Appellant objected to the question propounded by the court to the jury, to wit, “Was the 20-year lease delivered?” The objection and argument in support of it were as follows: “The defendant E. P. Palmer excepts to the special issue No. 1 as submitted because it is not so worded as to give the same prominence to both leases introduced in evidence, but does give undue prominence to the 20-year lease and withholds from the jury the 10-year lease. The issue, if submitted at all, should be submitted so as to place before the jury both leases and in words substantially as follows: Which of the two leases, the 10-year or the 20-year lease, was executed by E. P. Palmer and delivered to Dr. Crawford?” Appellant insists here that the issue as submitted was calculated to mislead the jury in view of his testimony as a witness that, when a question arose as to whether the lease he made to Crawford was for 10 or for 20 years, he turned over both of the leases to the witness Mangrum, who wished to show them to the Alto State Bank and McLendon. The argument is that as propounded to them the question did not require the jury to find to whom the lease was delivered, and that their finding that it was delivered may have been based on appellant’s testimony that he *956 turned it over to Mangrum for tlie purpose stated. In determining tlie contention it must be assumed that the jury was composed of men of ordinary intelligence. It is not reasonable to believe that such men did not discover while trying the ease that the dispute between the parties was as to whether the 10 or the 20-year lease evidenced the contract between Palmer and Crawford, and that the determination of the dispute de-‘ pended upon whether the 20-year lease was delivered by Palmer to Crawford, and not at all on the fact that it was turned over to Mangrum for the purpose specified. We think there is no merit in the contention, and therefore overrule it. And we think there . is no more merit in appellant’s insistence in connection with said contention that he was entitled to have the issue submitted to the jury in the form, substantially, suggested by him in his objection. In support of his insistence appellant cites Ry. Co. v. Wagner (Tex. Civ. App.) 262 S. W. 902, where the court said: “The defendant is entitled to have all his defenses affirmatively submitted when proper request is made therefor.” Assuming that the case from which the quotation is made and others like it cited by appellant have any application here, they furnish no reason for sustaining his contention, for it does not appear in the record that he formulated the issue as he thought it ought to be and presented same to the court with a request that he give to the jury. Article 2186, R. S. 1925; Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R.. 1183; Schaff v. Ridlehuber (Tex. Civ. App.) 261 S. W. 523. It appears from bills of exceptions and the trial court’s qualifications thereof in the record that when the parties closed the testimony in the case at about 5:30 p. m. August 25, 1926, Palmer’s attorney stated to the court that he might want to use Crawford as a witness next morning, whereupon the bank’s attorney stated that if the hearing of testimony was closed he wished to excuse his witnesses, one of whom wanted to go to his home in Houston, from further attendance on the court, and then asked the court to say Whether the case would be reopened for the introduction of testimony the next morning. “There being nothing definite as to Dr. Crawford being used,” it is recited in the qualification to a bill of exception, “the court then ruled no other evidence would be permitted only by agreement,” whereupon the bank’s attorney excused his witnesses, including the one from Houston. The next morning Palmer’s attorney offered Crawford as a witness, and the bank’s attorney objected' on the ground that, relying on the statement of the court that he would hear no further evidence in the ease unless by agreement of the parties, he had excused his witnesses and they were not present in court. The court then refused to permit Crawford to testify, and his refusal is complained of here. It appears in the record that both Palmer and Crawford resided in the town of Alto, in the county where the cause was tried, but that Crawford was out of said town during said August, 1925. As Crawford was a party to the lease in question, Palmer must have known his testimony would be important in the case, and yet he had not had him subpoenaed as a witness nor resorted to other means provided by law to obtain his testimony. Such being the case, we do not think it should be held that the trial court abused the discretion he possessed in the matter when he refused to reopen the case and permit Crawford to testify. Mynatt v. Howard (Tex. Civ. App.) 273 S. W. 276; Texas Co. v. Ramsower (Tex. Civ. App.) 255 S. W. 466. The bank’s witnesses having been rightfully excused and no longer in attendance on the court, a contrary ruling might very well have resulted in advantage to Palmer, who was in fault in, not having the witness present and offering him before the testimony was closed, and injury to the bank, which was not in fault in the matter. Most of the many other contentions in appellant’s brief relate to rulings of the court in admitting or excluding testimony. We have considered all of them, and think none of them present a reason why the judgment should be reversed. The judgment is affirmed.