Balhorn v. Startz

• Decision Date: 14 May 1930
• Docket Number: No. 8433.,8433.
• Citation: 28 S.W.2d 236
• Parties: BALHORN v. STARTZ.
• Court: Texas Court of Appeals

28 S.W.2d 236

BALHORN v. STARTZ.

No. 8433.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1930.

Appeal from County Court at Law, No. 2, Bexar County; George G. Clifton, Judge.

Suit by A. G. Startz against T. J. Balhorn. Judgment for plaintiff in justice court and in county court on certiorari, and defendant appeals, and plaintiff makes cross-assignments of error.

Reversed and remanded.

Conger & Conger, of San Antonio, for appellant.

Joe L. Hill, of San Antonio, for appellee.

SMITH, J.

This was a suit upon open account brought in justice's court by A. G. Startz against T. J. Balhorn in November, 1924. From a judgment taken five years later by Startz in the absence and without the knowledge of Balhorn, the latter took the case to the county court on writ of certiorari. In a trial in the county court Startz recovered, and Balhorn has appealed.

Startz operated a dairy and sold milk at wholesale to one Haby, who operated a milk route from his premises. Startz usually delivered this milk daily in fixed quantity and price, at Haby's place.

On March 14, 1924, Haby contracted to sell his milk route, business, and equipment to appellant, Balhorn; delivery to be made "about March 18, 1924." Haby advised Startz of this contract, that it would be effective on March 19, that Balhorn would take over the Haby business on that date, and assume Haby's contract with Startz, and directed Startz to continue deliveries at the Haby plant as usual. Startz made these deliveries daily from March 19 to April 10, inclusive, to a milk boy in charge, but has never been paid therefor. This suit was upon the account thus incurred. The jury found that the milk was delivered to appellant or his agent on the dates involved, and judgment was rendered accordingly.

It is contended by appellant that there was no evidence to support the jury finding, and that that finding was contrary to the conclusive evidence. We are obliged to sustain this contention.

It is conceded that appellee and appellant had no communications with each other concerning this transaction. Appellee relied solely upon the statement of Haby that appellant would take over Haby's contract with appellee, beginning on March 19. It is shown conclusively, however, that appellant did not take over the Haby business or take possession of the Haby premises, until April 11, on and from which date he paid appellee for all milk received from him. In the meantime an irresponsible and transient delivery boy received the milk at the Haby place, as he had done before for Haby. But it was conclusively shown that this boy had no authority to act for appellant, and did not act for him, and that appellant did not get the milk or receive any benefits from it. Only two witnesses, Haby and one Bowers, were in a position to testify to the true facts about the receipt and disposition of the milk, but neither of them was produced in court. The result is that appellee did not prove up his account as against appellant, who, on the other hand, disproved it so far as he was concerned.

Appellee presents a cross-assignment of error, in which he attacks the ruling of the county court in refusing to dismiss certiorari. It appears from the transcript from the justice's court, which may be considered in determining the motion to dismiss (Darby v. Davidson, 27 Tex. 432; McBurnett v. Lampkin, 45 Tex. Civ. App. 567, 101 S. W. 864), that this suit, on open account, was instituted against appellant in the justice's court, on November 10, 1924; that citation therein was served on appellant on November 27, 1925; that appellant filed "sworn denial" of the account sued on, on December 11, 1925; that the case was called for trial, finally, on April 23, 1929, when appellee appeared "in person and by his attorney," and appellant, "having filed an answer, but...