Bailey v. Giant Tire & Rubber Co.

• Court: Texas Court of Appeals
• Writing for the Court: Barcus
• Citation: Bailey v. Giant Tire & Rubber Co., 3 S.W.2d 501 (Tex. App. 1928)
• Decision Date: 02 February 1928
• Docket Number: (No. 608.)
• Petition History: writ dism'd
• Parties: BAILEY v. GIANT TIRE & RUBBER CO.

3 S.W.2d 501

BAILEY v. GIANT TIRE & RUBBER CO.

(No. 608.)

Court of Civil Appeals of Texas. Waco.

February 2, 1928.

Rehearing Denied March 8, 1928.

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

Suit by Giant Tire & Rubber Company against J. F. Bailey and another. From a judgment in favor of plaintiff, the named defendant appeals. Affirmed.

W. V. Dunnam, of Waco, for appellant.

Spell, Naman & Penland, of Waco, for appellee.

BARCUS, J.

Appellee, a foreign corporation, instituted this suit against appellant J. F. Bailey and his son, E. B. Bailey, who were alleged to be partners doing business under the partnership name of Bailey Garage, to recover $2,132.87, which it claimed was due on account. Appellee further alleged that if it should be held that appellant was not a partner with his son, E. B. Bailey, that he was estopped from denying same because he had made representations to various commercial agencies, as well as to the party who sold the goods for appellee, to the effect that he was a partner in said business, and set out in detail the various representations made. E. B. Bailey, by both pleadings and evidence, admitted, in effect, the justness of the account sued on except he claimed credit for some of the merchandise which he had returned. Appellant J. F. Bailey denied under oath that he was a partner with or that he had made any representations that he was a partner with his son in said business. The cause was tried to a jury, submitted on special issues, and resulted in judgment being rendered against E. B. Bailey and J. F. Bailey jointly for $1,182.22, being approximately the amount E. B. Bailey admitted was due on the account after having been given credit for the goods returned. J. F. Bailey alone appeals.

In response to special issues the jury found that appellant represented to R. G. Dunn & Co. that he was a partner in the business with E. B. Bailey, and that appellee relied on said statement. The jury further found that appellant made a written statement to appellee with reference to his financial standing for the purpose of securing credit from said company, and that appellee relied thereon; and further found that appellant represented to J. S. Nethery, the party who made the sale of the goods to the Bailey Garage for appellee, that he (J. F. Bailey) was the owner of the Bailey Garage, and that appellee relied on said representation; and found that appellant represented to J. A. Pilcher, the agent and representative of R. G. Dunn & Co., that he (Bailey) was a partner in said Bailey Garage, and that said representation so made to Pilcher as agent for R. G. Dunn & Co. was communicated to appellee before the credit was extended, and that appellee relied thereon.

Appellant, by his first and second propositions, contends that the trial court committed error in overruling two special exceptions which he leveled at appellee's petition. We overrule these propositions. We do not think there was any error in the court's action. If it could be said there was error, it would not be ground for reversal, since appellant has not attempted to show and it does not appear that he was in any way injured by the court's action in overruling said special exceptions. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

Appellant, by his third, fifth, and tenth propositions, contends that the trial court committed error in refusing to permit him to file a trial amendment to the effect that the debt which the Bailey Garage owed, if any, was not on an account but on trade acceptances, and that the court should have instructed a verdict for him because of the variance in the proof and allegations, claiming that appellee filed suit on an account and the evidence showed that it had trade acceptances rather than an open account for the debt. We overrule these assignments. The sworn, itemized account attached to appellee's petition gave a full statement of all of the goods sold, and in connection therewith said petition stated that plaintiff had trade acceptances for a part thereof, giving a statement of the trade acceptances which it held. There was no contention that any of the account for which judgment was rendered had been paid or that the trade acceptances given in connection with...