Anthony Miller, Inc. v. Taylor-Fichter S. Const. Co.
| Decision Date | 22 March 1940 |
| Docket Number | No. 3632.,3632. |
| Citation | 139 S.W.2d 657 |
| Parties | ANTHONY MILLER, Inc., v. TAYLOR-FICHTER STEEL CONST. CO., Inc. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; R. L. Murray, Judge.
Suit by Anthony Miller, Inc., against the Taylor-Fichter Steel Construction Company, Inc., for cancellation of a contract. From a judgment sustaining a plea in abatement, plaintiff appeals.
Affirmed.
Alto V. Watson, of Port Arthur, Chas. S. Pipkin, of Beaumont, and Conlen, LaBrum & Beechwood, and George E. Beechwood, all of Philadelphia, Pa., for appellant.
Orgain, Carroll & Bell, of Beaumont, and K. W. Stephenson, of Orange, for appellee.
This case was heard in the court below on the pleadings. The judgment sustained the plea in abatement filed by appellee, Taylor-Fichter Steel Construction Company, Inc., to the petition of appellant, Anthony Miller, Inc. The plea in abatement made the issue that appellant, a foreign corporation, was transacting business in Texas without the permit required by Article 1529, Vernon's Ann.Civ.St.:
We give the following summary of appellant's petition:
(1) Appellant is a private corporation, organized and existing under and by virtue of the laws of the State of New Jersey, with its principal office in the State of New Jersey. Appellee is a Delaware corporation, with an office and agent in Jefferson County, Texas. On May 1, 1938, and since that time, appellee was and is the principal contractor for the erection of the Neches River bridge, over the Neches River in the State of Texas.
(2) Between the dates of May 1, 1938, and July 27, 1938, appellant was not engaged in nor had it ever been engaged in the transaction of business in the State of Texas, nor had it had either a general or special office in the State of Texas. Between these dates, appellee, acting by and through its agents thereunto duly authorized, made certain false and fraudulent misrepresentations of fact and concealment of facts to appellant in the City of New York and State of New York to induce appellant to enter upon and undertake a contract with defendant for the cleaning, scraping and painting of the Neches River bridge, located across the Neches River, a navigable stream between Jefferson County and Orange County, Texas, Appellant, relying on the misrepresentations and fraudulent concealments of appellee, on July 7, 1938, in the City of New York, in the State of New York, entered into a contract with defendant for the cleaning and painting of said bridge. The misrepresentations and fraudulent concealments were of material facts made by appellee to appellant for the purpose of inducing appellant to rely thereon and to act thereon to its detriment. Appellant did act and rely thereon to its detriment; the representations by appellee to appellant were false and known to be false by appellee at the time they were made; but appellant did not know that they were false. By reason of these misrepresentations appellant was induced to execute the contract to do the work outlined above.
(3) The contract entered into between appellant and appellee was subject to the approval of the State Highway Commission of the State of Texas and the federal P. W. A. Directors; appellee, through S. D. Kapelsohn, obtained such permission and approval of said contract. On or about August 1, 1938, appellant "for the first time" entered upon the performance of its contract with appellee.
(4) When the conditions falsely represented to appellant came to its attention, appellant called them to the attention of appellee; thereupon appellee, both in the State of Texas and in the City and State of New York, from time to time during the period from August, 1938, to December, 1938, promised appellant, as an inducement to it to furnish the material and to continue to perform the work, to pay for all costs of material to be furnished and for labor to be performed and expenses incurred, plus a profit, and to meet and comply with the warranties upon which the original contract was executed. Appellant, relying on these promises and inducements, continued to furnish the labor and material and to perform the work; finally appellant demanded of appellee that the agreements and promises thus orally made in the State of Texas and the City and State of New York, be reduced to writing, which appellee refused to do. Because of the failure on the part of appellee to contract in writing to pay on a cost plus basis, and because it refused to perform the conditions agreed upon orally, appellant discontinued work on the bridge at the close of the working day on January 25, 1939. Appellant entered on the work in August, 1939, on the Neches River bridge in Texas, and discontinued work at the close of the working day on January 25, 1939.
Opinion.No point is made that Article 1529, supra, and also Articles 1536 and 2031a, do not control this case. The point at issue...
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Rich v. Con-Stan Industries, CON-STAN
... ... CON-STAN INDUSTRIES, Inc., Appellee ... Court of Civil Appeals of Texas ... Dec ... Appellant cites the case of Anthony Miller, ... Inc. v. Taylor-Fichter Steel Const. Co., ... ...
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A.H.L. Inc. of Delaware v. Star Ins. Co.
...similar to those in this case, courts have reached the same result as we did here. See, e.g., Anthony Miller, Inc. v. Taylor-Fichter Steel Construction Co., 139 S.W.2d 657 (Tex.Civ.App. 1940) (contract for cleaning of bridge within state was sufficient contact with state to require foreign ......