Hedges v. Slaughter

DUNKLIN, Associate Justice. — B. P. Hedges has appealed from a judgment against him in favor of R. L. Slaughter on two promissory notes, plaintiff’s right to recover on one of which was not challenged. The other note was for the principal sum of three hundred dollars, executed by Hedges in favor of Slaughter, for money advanced by the latter to enable the defendant to perform his certain contract to move a house from the town of Slaughter, to the town of Midland. The house belonged to Slaughter and by the terms of the eontraot, he agreed to pay Hedges six hundred and seventy-five dollars'for the work to be performed. The note and contract were both dated November 11, 1908, and it was stipulated in the contract that Hedges should complete the work of moving and placing the house on, or before January 1, 1909, and should pay a forfeit of five dollars per day for each and every day after that date, that the completion of the work might be delayed. The note contained a recital that it was subject to the terms of the contract, and the contract contained a stipulation that, should Hedges complete the work undertaken before January 1, 1909, the note should then mature, and the amount due thereon, should be allowed as a credit on Hedges’ demand for six hundred and seventy-five dollars, which Slaughter had contracted to pay for the work. The suit was instituted April 19, 1909, and in his petition plaintiff recited the contract as well-as the note, * and alleged that defendant had not moved the house as he had contracted to do, but had abandoned the contract after moving the house a portion of the distance required. In his answer, defendant alleged that in addition to the terms of the written contract and after the same had been executed, Slaughter, for a valuable consideration, contracted and agreed to furnish four mules and a driver to assist in the work, but that he wrongfully breached this contract and by reason of such breach, defendant, after moving the house for a distance of about six miles and within a distance of six miles from Midland, was unable to move it any further. And for the alleged breach by plaintiff of his contract to furnish the four mules and a driver, Hedges sought a judgment against Slaughter for seven hundred dollars, as damages sustained, and, in the alternative, for four hundred and fifty dollars as the reasonable value of the services he rendered in the partial performance of the contract. Appellant contends that as there is a stipulation in the note in effect, that it is subject to the terms >of the contract, and as the contract contains no stipulation that the note should be payable according to its terms in the event Hedges should fail to comply with the contract, the *327 note should be construed as an obligation only to secure the forim. of five dollars per day stipulated in the contract, and not as an unconditional promise to pay the amount specified. The court did not err in overruling defendant’s special exception to plaintiff’s petition presenting this contention. The note was for three hundred dollars, which was advanced to Hedges to enable him to perform the services he agreed to perform. It was an unconditional promise to pay that sum on January 1, 1909, and the written contract made contemporaneous with the execution of the note contained no stipulation contravening, nor at variance with that agreement. The court refused to permit defendant to testify that Slaughter agreed to furnish defendant four mules and a driver to assist in moving the house as long as defendant desired or needed such assistance, as alleged in defendant’s answer, on the ground that to do so would be to allow defendant to impeach Slaughter, whom defendant had introduced as his own witness and who had denied that he agreed to furnish the mules and driver as long as defendant desired them, or for any definite length of time. In this ruling there was error. As said by Justice Neill in Pitman v. Holmes, 34 Texas Civ. App., 485, (78 S. W., 965), “The rule that a party will not be permitted to impeach the general reputation of his own witnesses for truth, or to impugn their credibility by general evidence tending to show them unworthy of belief, does not preclude the party from proving the truth of any particular faot by any other competent testimony in direct contradiction to what the witness may have testified.” See also, Greenleaf on Evidence, section 443b (16th ed.) The rule above announced applies with special force when the witness sought to be contradicted, is the opposing party to the suit and therefore, hostile to the party offering his testimony. For a few days, Slaughter did furnish the mules and a driver as he had agreed to do. One, Ogle, was the driver furnished, and one of the allegations in defendant’s answer was that Ogle was neglectful of his duties. Slaughter testified that he told defendant to discharge Ogle, and employ another driver in his stead, but the court refused to permit defendant, by his testimony, to contradict Slaughter in this statement, on the ground that he could not impeach his own witness. For the reasons stated above there was error in this ruling, and also, in the further refusal by the court to permit defendant to testify that on or about January 2, 1909, Slaughter ordered him to cease work, Slaughter having denied that he did so. Complaint is made of a peremptory instruction by the court detecting a finding against defendant’s plea of breach of contract by plaintiff to furnish mules and a driver. This instruction was given after defendant was erroneously denied the right to sustain his said plea by proof, and doubtless would not have been given if such proof had been admitted. In the court’s instruction to the jury the defendant was denied a right to recover for the services performed by him in moving the house a portion of the distance stipulated in the contract, unless the jury should find that such services were of value to plaintiff, and the value 'of the same to the plaintiff was made the measure of defendant’s re *328 ISvery on his counter claim. Upon another trial, the court should be governed by the rule announced in Carroll v. Welch, .96 Texas, 150, which seems to have been uniformly approved by our later decisions, and which fixes the measure of damages in such cases as this. In that case, Chief Justice Wheeler said: “According to the modern decisions and the decisions of this court the rule appears to be, that if the employee abandons his contract, the employer shall be charged with only the reasonable worth or the amount of benefit he has received upon the whole transaction, and in estimating the amount, the contract price can not be exceeded. The former is allowed to recover for his part performance its reasonable worth, not to exceed the contract price, and the latter to recoup or reconvene his damages for the breach of contract by the former. Where the employee is discharged without cause, or is prevented by the employer from completing the performance, he is entitled to recover for the part performed, and the damages he has sustained by reason of the breach of contract by the employer. If both parties have broken the contract, or there has been a mutual abandonment 'of it by both parties, the employee is entitled to recover the reasonable worth of the services he has rendered the employer.” See also, Weis v. Devlin, 67 Texas, 512; Wanhscaffe v. Pontoja, 63 S. W., 664. If, in any of the contingencies stated in the rule quoted above, Hedges is entitled to recover for the 'services he rendered, then the value of his services would be determined by the usual rule, regardless of whether or not they were of actual value to Slaughter. For the errors pointed out the judgment is reversed, and the cause remanded. Reversed and remanded.