United States Gypsum Co. v. Shields

Decision Date08 April 1908
Citation108 S.W. 1165
PartiesUNITED STATES GYPSUM CO. v. SHIELDS.
CourtTexas Supreme Court

Action by the United States Gypsum Company against P. T. Shields. There was a judgment of the Court of Civil Appeals (106 S. W. 724), affirming a judgment for defendant, and plaintiff brings error. Affirmed.

Keller & Keller, for plaintiff in error. Ogden, Brooks & Napier, for defendant in error.

BROWN, J.

The gypsum company sold to Shields 2,796 barrels of adamant plaster upon an order signed by Shields and dated June 18, 1904. Shields at the time had a contract for plastering some government buildings at Ft. Sam Houston, and there are a number of others who had contracts of like character at the same place. Shields refused to accept the adamant plaster from the gypsum company, which brought this suit to recover from him the sum of $1,345.70 profits that it claimed it would have realized on the sale. Shields pleaded the general denial, and especially that the order sued upon was procured by plaintiff from him by fraud in this: "That prior to, and at the time of, the giving of said order, and for the purpose of inducing this defendant to make the said order, one W. F. Watson, the agent and representative of the plaintiff, represented to this defendant that he had seen the quartermaster in charge of the construction of the buildings then being erected by the United States government at Ft. Sam Houston, Texas, and had been informed by the said quartermaster that the material set out in the said order and in plaintiff's petition would be used on all buildings then under contract to be constructed there." It was alleged in the answer that, relying upon the representation of Watson, who was the agent of the gypsum company, the defendant executed the order for the cement which was calculated to be enough for all the contracts that Shields then had with the government. It is alleged that as a further inducement to him to make the order Watson represented that the quartermaster in charge had decided to use the material on all buildings then in the course of construction and under contract to be constructed at Ft. Sam Houston. That all contractors having such contracts at Ft. Sam Houston would be compelled to use the adamant plaster, and that he, the said Shields, could sell enough plaster to the other contractors to make a considerable amount of money, and that the company would appoint him agent, and allow him 10 cents per barrel for all plaster that he might sell to other contractors. Watson then and there appointed Shields the agent of the company for the adamant plaster at that place. It is alleged that the representations of Watson were false, and that none of the contractors were required to use the said adamant plaster in the construction of the buildings, and none did use it; that Shields was not able to sell any of it. He alleges that if he had known that the contractors would not be required to use the adamant plaster, he would not have signed the said order.

The Court of Civil Appeals filed the following conclusions of fact: "As an inducement for the defendant to enter into the contract sued upon, W. F. Watson, the agent and representative of plaintiff, represented to him that he had seen the quartermaster in charge of constructing certain buildings for the United States at Ft. Sam Houston, and that he had been informed by the quartermaster that the material described in the contract would be used in all buildings then under contract of construction for the government at that place; that relying on said representations, and believing them to be true, the defendant made the order through said agent for said material, which was represented by Watson to be the amount necessary to be used in the buildings which defendant was then under contract with the government to build at Ft. Sam Houston; that the representations so made by plaintiff's agent were false, none of the contractors for the erection of such building being required to use such material in their construction; that such representations were material, and fraudulently made, and induced defendant to make said order, but for which it would not have been given; for the material was worthless to defendant...

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    ...has been abused to the complaining party's injury. Varner v. Carson, 59 Tex. 303; Ramey v. Allison, 64 Tex. 697; U. S. Gypsum Co. v. Shields, 101 Tex. 473, 108 S. W. 1165; Henderson v. Railway Co., 17 Tex. on page 576, 67 Am. Dec. 675; 2 Pomeroy's Equity Jurisprudence, §§ 955, 956, 963; 20 ......
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