This case was tried by the court below without a jury, and while there is a conflict in the testimony on the issue as to whether the cattle were sold to appellant and became his property or were simply bill-of-saled to him for Hunter's benefit and in order that his indebtedness to the Strayhorn-Hutton-Evans Commission Company might be extended, we are of opinion that the record shows sufficient evidence to support the finding and judgment of the court that said cattle were sold to appellant and became his property.
Appellant's bond provided as follows: "It is further expressly agreed and understood that in the event that plaintiff recovers judgment in either or both of said cases against the defendant Gage, with a foreclosure of such pasturage lien for the pasturage of the cattle now in said pasture, then for so much of said judgment or judgments as shall be decreed to be such lien on said cattle now in said pasture, a judgment may be rendered on this bond against the said J. H. Gage as principal, and the other subscribers hereto as sureties therein; it being intended that this bond shall take the place of the cattle now in said pasture and *Page 244 stand in lieu thereof as security for the pasturage on the cattle now in said pasture, and for their respective pastures only." And the court found in favor of the interveners for the amount of the pasturage of the cattle in the sum of $929.50, and that said amount was a lien upon the cattle described in the two petitions, and that the said bond was executed in order to obtain the possession of and permission to remove the cattle upon which the lien was decreed. This authorized the judgment against the sureties on appellant's bond.
Appellant's claim for shortage in the cattle sold him, and for which he obtained judgment in the sum of $1,538.24 against Hunter did not arise out of and was not incident to or connected with the plaintiff's cause of action upon which this suit is based. The shortage in the number of cattle did not arise out of and was not in any manner incident to or connected with the pasturage of the cattle or appellant's implied obligation to pay the reasonable value of the pasturage. (Rev. Stat., art. 755; Carothers v. Thorp, 21 Tex. 362; Egery v. Power, 5 Tex. 501; Cannon v. Hemphill, 7 Tex. 184 [7 Tex. 184]; Dutton v. Mason, 21 Texas Civ. App. 393[21 Tex. Civ. App. 393].) And the court having found that the plaintiff C. T. Hunter, by written transfers and assignments filed since the institution of the suits, had assigned and transferred his entire cause of action in each of the suits to the interveners, and that the same was made for value and prior to the filing of the answer and plea of reconvention by appellant Gage, and there being evidence to support such findings, the said claim of appellant could not legally be off-set against the claim of interveners.
If the letters referred to in appellant's fourth assignment of error were improperly admitted in evidence, the case being tried before the court, and there being sufficient evidence independent of that afforded by the letters to support the judgment, and the plaintiff Hunter having, in effect, testified to the matters that these letters tend to prove, their admission was harmless.
The fact that the contract or agreement between Hunter and the Strayhorn-Hutton-Evans Commission Company was not completed or carried out as to that part thereof which required the latter to surrender to the former his notes, and the former to convey to the latter the land upon which they had a second mortgage, does not affect the validity of that part of the contract which was fully consummated, and the benefits of which were availed of by the said Strayhorn-Hutton-Evans Commission Company; and the fact that appellant was not a party to such contract would not in any manner affect the sale made to him of the cattle.
In our opinion there was sufficient testimony to support the finding and judgment of the court as to the amount of pasturage for which judgment was rendered.
As before stated, we are of opinion that the testimony was sufficient to support the finding of the court that the cattle, for the pasturage of which this suit was brought, were the property of appellant Gage; and therefore overrule his seventh assignment of error.
There being no reversible error pointed out in the record, the judgment of the court below is affirmed.
Affirmed. *Page 245