Fairbanks, Morse & Co. v. Texas Power & Light Co.

• Decision Date: 20 June 1929
• Docket Number: No. 5516.,5516.
• Citation: 32 F.2d 693
• Parties: FAIRBANKS, MORSE & CO. v. TEXAS POWER & LIGHT CO.
• Court: U.S. Court of Appeals — Fifth Circuit

32 F.2d 693 (1929)

FAIRBANKS, MORSE & CO. v. TEXAS POWER & LIGHT CO.

No. 5516.

Circuit Court of Appeals, Fifth Circuit.

May 6, 1929.

Rehearing Denied June 20, 1929.

Allen Wight, of Dallas, Tex., B. B. Stone and B. L. Agerton, both of Fort Worth, Tex., and Carroll J. Lord, of Chicago, Ill. (Bryan, Stone, Wade & Agerton, of Fort Worth, Tex., Ashcraft & Ashcraft, of Chicago, Ill., and Touchstone, Wight, Gormley & Price, of Dallas, Tex., on the brief), for appellant.

Joe A. Worsham, of Dallas, Tex. (Beall, Worsham, Rollins, Burford & Ryburn, of Dallas, Tex., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Appellee, the Texas Power & Light Company, a Texas corporation, obtained an interlocutory injunction against appellant, Fairbanks, Morse & Co., an Illinois corporation, in the district court of Hunt county, Tex. The parties will be hereafter referred to as plaintiff and defendant respectively. The order, in general terms, restrained defendant from in any way interfering with plaintiff in the performance of its contracts to supply electric power and energy to the city of Commerce and private consumers of electricity in said city; from inducing any private parties to make contracts with the city of Commerce for electric power and energy; and from doing the same acts with regard to any other city or town in the state of Texas. The suit was removed to the United States District Court for the Northern District of Texas, and thereafter a motion to dissolve the injunction was overruled, and from that order this appeal follows, under the provisions of section 129, Judicial Code (28 USCA § 227).

The hearing was on bill and answer. Plaintiff argues that the answer is not properly verified because not under the seal of the corporation. The answer shows the usual form of verification, by an agent charged in the bill as being guilty of the acts complained of, and is sufficient. The objection is frivolous. Gerlach-Barklow Co. v. Morris & Bendien (C. C. A.) 23 F. (2d) 159. We must give full effect to the denials of the answer. Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 5 S. Ct. 213, 28 L. Ed. 733; U. S. v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 17 S. Ct. 540, 41 L. Ed. 1007.

The pleadings are so voluminous that it would be impossible to briefly state them. The material issues presented are these: Plaintiff has a franchise, which is not exclusive, to generate, sell, and distribute electric current in Texas, and has contracts with the city of Commerce and various other towns and cities in Texas, and with various private consumers of electric current in said cities and towns, and has erected generation plants and distribution systems for the purpose of fulfilling said contracts. The defendant is not engaged in generating and selling electric current, but manufactures and installs plants for that purpose. It has entered into a contract with the city of Commerce to supply it with a plant for the generation and distribution of electric current, for the price of $104,000, has begun the erection of the plant, and has expended about $65,000 in so doing. This contract binds the defendant to accept payment out of the net revenues to be derived by the city for six years from the sale of electric power and energy to its inhabitants. Some of its agents have assisted the city in soliciting and securing contracts from the citizens of Commerce to patronize the municipal plant when erected. It is alleged by plaintiff that this contract and the contracts with the private parties have been induced by false and fraudulent statements on the part of defendant to the effect that plaintiff's contract with the city is invalid and that its rates are exorbitant, and that defendant has induced said parties to violate their contracts with plaintiff. Defendant denies any fraud or false statements in procuring the contract, and alleges that instead of soliciting the contracts for the erection of plants, the initial inquiries came from the city of Commerce and other Texas towns. Defendant also denies that it has...