Achterberg v. Gillett

• Decision Date: 11 March 1959
• Docket Number: No. 5304,5304
• Citation: 322 S.W.2d 306
• Parties: John F. ACHTERBERG, d/b/a The Jno. F. Achterberg Company, Appellant, v. Sam B. GILLETT, Jr., Appellee.
• Court: Texas Court of Appeals

Page 306

322 S.W.2d 306

John F. ACHTERBERG, d/b/a The Jno. F. Achterberg Company, Appellant, v. Sam B. GILLETT, Jr., Appellee.

No. 5304.

Court of Civil Appeals of Texas, El Paso.

March 11, 1959.

Rehearing Denied April 1, 1959.

Edwards, Belk, Hunter & Kerr, El Paso, for appellant.

Andreas, Lipscomb, Peticolas & Fisk, El Paso, for appellee.

LANGDON, Chief Justice.

This is an appeal from a judment of the District Court of El Paso County granting defendant's motion for summary judgment, wherein it was adjudged that plaintiff take nothing from the defendant under Rule 166-A, Texas Rules of Civil Procedure.

Appellant Achterberg, plaintiff below, brought this suit against appellee, Sam B. Gillett, Jr., defendant below, for damages for breach of a written contract giving to plaintiff a non-cancellable, exclusive right, for a period of fifteen years from January 1, 1950, to act as defendant's sales agent on a commission basis, in marketing, except in certain trade territories, all products produced by defendant in his business known as the Valley Canning Company.

The determination of this case depends upon a proper construction of the agreement between the parties, set out in full as follows:

'February 13, 1950

'The Jno. F. Achterberg Company,

'1020 East Overland Street

'El Paso, Texas

'Dear John:

'With reference to our verbal understanding that you are to have exclusive sales on all of our products, leaving out the El Paso trade territory and Albuquerque New Mexico trade territory, we are pleased to set this on a fifteen year non-cancellable basis and you are not to receive less than 2 1/2% brokerage on all sales.

'This arrangement is made with the understanding that you will continue to actively arrange for brokers in all territories, continue with your usual correspondence with these brokers as well as look after all correspondence with Department Stores, individuals and retailers as you have in the past.

'I am setting this upon a fifteen year basis starting January 1, 1950 as I realize that before you started handling our account, we did not do any business outside of the El Paso trade territory and in that we are now selling our products from Coast to Coast, I feel that a lot of progress has been made and that more will be made as we go along.

'Yours very truly,

'Valley Canning Company

'Sam B. Gillett Jr.'

Appellant alleged, and it is undisputed, that during the terms of the contract, appellee voluntarily sold the business and asserts of Valley Canning Company, thus placing it beyond the power of appellee, by his own action, to further carry out and perform his part of the contract.

The defendant, Gillett, after an answer setting out a general denial, as well as affirmative defenses, filed a motion for summary judgment in his favor, which the court, after opposition filed by plaintiff, sustained on the pleadings and summarily rendered judgment that the plaintiff take nothing.

In support of the motion for summary judgment, appellee relied upon two grounds; first, that the contract was not signed by appellant (plaintiff below) and was, therefore, unilateral and lacking in mutuality, and comes within the Statute of Frauds, Art. 3995, Vernon's Ann.Civil Statutes of Texas.

Appellee has conceded that the trial court's action in rendering a summary judgment in his favor cannot be supported on the first ground of his motion for summary judgment, and makes no point of it in the brief filed herein. We have concluded that such contract letter, while it may have been lacking in mutuality when it was made, and so long as it remained wholly executory, it was, however, accepted by the appellant, as disclosed by the record; appellant rendered the services contemplated by the contract and was paid the commission provided in the contract, until the business was sold in 1955. The general rule is that acceptance of the contract signed only by the party delivering it, and the execution of it in part by the party accepting it, makes the contract obligatory on both parties: Leonard v. Portien, 3 Willson, Civ.Cas.Ct.App. Sec. 362; Palmer v. Katz, Tex.Civ.App., 210 S.W.2d 451. It follows that, if the action of the trial court in rendering summary judgment in favor of appellee is to be sustained, we must look to the second ground urged by appellee in support of his motion.

Appellant contends that the trial court erred in rendering summary judment against appellant, and brings two points of error, which we believe may be stated in one question, as follows:

As a matter of law, may the obligor in a contract, not rendered unenforceable by operation of the Statute of Frauds (Art. 3995, R.C.S.), giving to the obligee the exclusive and non-cancellable right to market obligor's wares on a commission basis for 15 years, shed his responsibility under the contract by making a voluntary sale of the business?

Under Rule 166-A, T.R.C.P., the burden is upon the defendant, moving for summary judgment, to show as a matter of law that the plaintiff has no cause of action against him. In order to prevail when the motion is submitted, it must...