Ablon v. King

Decision Date10 December 1925
Docket Number(No. 291.)<SMALL><SUP>*</SUP></SMALL>
Citation279 S.W. 563
PartiesABLON v. KING et al.
CourtTexas Court of Appeals

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Action by J. W. King and another against George Ablon and another. From a judgment against the named defendant, he appeals. Affirmed.

Grady Niblo, of Dallas, and Tirey & Tirey and W. L. Eason, all of Waco, for appellant.

John B. Atkinson, of Waco, for appellees.

STANFORD, J.

This suit was filed by J. W. King and W. E. Crews, partners, doing business at McGregor, Tex., under the firm name of Cass Produce Company, against Esir Ablon and George Ablon, alleged partnership during November, 1922, doing business at Fort Worth, Tex., under the firm name of the Globe Produce Company, to recover for certain shipments of turkeys made during November, 1922, by plaintiffs to defendants, amounting in the aggregate to about $2,500. In answer to four special issues submitted by the court, the jury found as follows: (1) That George Ablon and Esir Ablon were partners in November, 1922, in conducting the Globe Produce Company; (2) that George Ablon did represent to W. E. Crews that he, the said George Ablon, and Esir Ablon were partners in the produce business in November, 1922; (3) that plaintiffs did rely upon said representations; (4) that plaintiffs would not have shipped said turkeys to the Globe Produce Company if George Ablon had not represented to the said W. E. Crews that he and Esir Ablon were partners. The trial court instructed a verdict in favor of Esir Ablon, and, upon the above findings of the jury and such findings of fact as the trial court, under the evidence, was warranted in making, he entered judgment in favor of plaintiffs J. W. King and W. E. Crews and against George Ablon for $2,606.12, from which judgment the said George Ablon has appealed. Other facts will be stated in connection with the assignments discussed.

Opinion.

Under several assignments appellant challenges the sufficiency of the evidence to sustain any one of the findings of the jury. We will make a general statement of the entire case as bearing not only upon the above assignments but others presented by appellant.

The record discloses that J. W. King and W. E. Crews were engaged in the produce business under the firm name of the Cass Produce Company in the fall of 1922, and had been so engaged for several years; that prior to said date George Ablon had been engaged in the produce business at Fort Worth under the name of the Globe Produce Company, and that appellees had in prior years had dealings with George Ablon, trading under the name of the Globe Produce Company; that is, they had shipped him produce, talked to him over the phone, etc. J. W. King testified, in substance, that about the 13th or 14th of November, 1922, when he returned from dinner to his place of business, appellant, George Ablon, was there in his place of business; that W. E. Crews introduced him to appellant, and he remarked an introduction was not necessary; that he had been shipping produce to appellant for several years; that appellant then told him about the big contract a New York friend of his had for turkeys and his ability to pay more for turkeys; and that appellant, George Ablon, asked him to ship him some turkeys, and he agreed to do so. Appellant said he "was out rustling turkeys for his big deal they were pulling off. I asked Mr. Ablon what about our money, and he said, `Just draw drafts on us at Fort Worth with express receipts attached, and we will honor draft upon presentation.' * * * He offered us a bunch of his shipping tags to use, but I told him I had some of my own that I preferred to use. He had some Globe Produce Company shipping tags with him. I shipped these turkeys to the Globe Produce Company solely upon the representation of George Ablon."

Appellee W. E. Crews testified that, when appellant, George Ablon, came into their place of business, "Mr. Ablon stated that he and his brother owned the Globe Produce Company, and that they had quite a batch of stuff through some New York firm that they had control of, and that they had gotten quite a block of it for Northern Texas and Southern Oklahoma, and he was going up and down the road to try to locate the turkeys, buying the turkeys." This witness testified further, in effect, that appellant made them a price "one to two cents better than we had; that for us to draw a draft on the Globe Produce Company with express receipts attached and they would be paid; that appellant had a lot of shipping tags and offered to leave us tags," etc. Another witness testified that about the same date appellant appeared at his place of business in Moody, some 10 miles south of McGregor, and tried to buy turkeys. Immediately after appellant was at appellee's place of business and made the agreement with them to ship turkeys to the Globe Produce Company, they began to buy and ship to said company; said shipments being made on November 17, 18, 19, and 20, 96 coops in all, amounting to some $2,250. As appellees made said shipments, they drew drafts on the Globe Produce Company, but did not attach express receipts to drafts, but deposited said drafts in their local bank as cash items. When said drafts began to be returned unpaid, appellee J. W. King went to Fort Worth and to the office of the Globe Produce Company, and found said company had received all the shipments made, but found said company had no stock of any kind on hand, and apparently no assets, except a small amount of fixtures of little value, and found no one in except the bookkeeper. After considerable time and effort he succeeded in getting Esir Ablon to come to their office, and, after considerable effort, late in the night he succeeded in getting Esir Ablon to give him a check on a Fort Worth bank for $2,000, with a promise to send appellees the balance in a day or so. He was unable to find appellant, George Ablon. Appellee King remained overnight in Fort Worth, and next morning presented his $2,000 check to the bank for payment, and was informed by the bank that the Globe Produce had only 17 cents to its credit, so the bank refused payment. Whereupon appellee King employed a lawyer, and, the county clerk's records of Tarrant county showing that Esir Ablon was doing business under the name of the Globe Produce Company, said attorney filed suit on appellees' claim against Esir Ablon, doing business under said trade-name, and sued out an attachment, and had same levied upon all the property of Esir Ablon and the Globe Produce Company that could be found, all valued at $50. Afterwards judgment was taken by default against Esir Ablon, who soon thereafter took the bankrupt law, and thus discharged his obligations; appellees receiving nothing. The appellees knew George Ablon, had sold him produce before, but knew nothing about Esir Ablon.

This suit was afterwards filed in McLennan county by appellees against George and Esir Ablon,...

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5 cases
  • McIver v. Gloria
    • United States
    • Court of Appeals of Texas
    • 24 Junio 1942
    ...was rebuttable, and that the rebuttal testimony of defendant himself was sufficient to make it a jury issue in this case. Ablon v. King, Tex. Civ.App., 279 S.W. 563. In this connection, we further hold that defendant's statements to Probst and the hospital physician that he owned the truck ......
  • Krofcheck v. Ensign Co.
    • United States
    • California Court of Appeals
    • 25 Noviembre 1980
    ...Pate v. Geo. P. Wyly & Co., 118 Ga. 262 (45 S.E. 217, 218); Robinson v. Seay, 175 Mo.App. 713 (158 S.W. 409, 412-413); Ablon v. King (Tex.Civ.App.), 279 S.W. 563, 566; American Photo Player Co. v. Simon, 151 La. 708 (92 So. 307, 308); cf., Cal.Civ.Code, § 2403, subd. (3)(d), Plaintiff cites......
  • Reed v. Garlington, 2821
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 28 Julio 1950
    ...791; Federal Land Bank v. Downs, Tex.Civ.App., 127 S.W.2d 952; Farrell v. Lawrence et al., Tex.Civ.App., 97 S.W.2d 391; Ablon v. King, Tex.Civ.App., 279 S.W. 563; Leyendecker v. Harlow, 189 S.W.2d The only point presented by the appellant is that the court erred in considering, over the obj......
  • Aly v. Texas Publication House
    • United States
    • Court of Appeals of Texas
    • 22 Marzo 1928
    ...liable. Appellee could have sued both of said parties, but had the right to sue either without joining the other. Ablon v. King et al. (Tex. Civ. App.) 279 S. W. 563; Webb v. Gregory, 49 Tex. Civ. App. 282, 108 S. W. 478; Goodman v. Republic Inv. Co. (Tex. Civ. App.) 215 S. W. We have exami......
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