Beirne v. North Texas Gas Co.

• Decision Date: 28 April 1920
• Docket Number: (No. 1661.)
• Citation: 221 S.W. 301
• Parties: BEIRNE v. NORTH TEXAS GAS CO.
• Court: Texas Court of Appeals

221 S.W. 301

BEIRNE v. NORTH TEXAS GAS CO.

(No. 1661.)

Court of Civil Appeals of Texas. Amarillo.

April 28, 1920.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Suit by R. D. Beirne against the North Texas Gas Company. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

J. H. Randell, of Denison, for appellant.

J. S. Kone, of Denison, and H. H. Cummins, of Sherman, for appellee.

HUFF, C. J.

The plaintiff, Beirne, sued the defendant, North Texas Gas Company, praying for an injunction restraining the defendant from tearing out certain fixtures in a building. It is alleged that plaintiff owned the building and that he rented it to defendant and that it placed in the building certain fixtures; that the defendant proposed to sell the same to plaintiff, and the price and value of the fixtures were to be fixed by arbitrators, who fixed the price at $100; that the defendant refused to accept the $100 and was threatening to remove and was about to remove the fixtures from the building, to the irreparable injury of the plaintiff, and unless restrained defendant would remove the same to the great damage of the building; that plaintiff had offered the sum awarded by the arbitrators to the plaintiff, which it had rejected, and was still ready to pay the same. The defendant answered that it was occupying the premises under a written lease which provided that it should have the right to remove all fixtures which it had installed, reimbursing the plaintiff for any damage to the building caused by such removal, and that it placed the fixtures in the building; that the plaintiff proposed to buy the fixtures from defendant, and defendant agreed to arbitrate the value of the fixtures, alleging that the arbitration was not conducted as agreed upon; that the sum fixed by the arbitrators in their award was not fair, and for the above reason refused to abide by the award. The contract of lease with reference to the fixtures is substantially as stated by the defendant in its answer. It seems from the evidence that there was some negotiation between the parties as to a sale of the fixtures to the plaintiff by the defendant. They could not agree upon the value, and the general manager, located at Dallas, wrote the company's local agent at Denison, with reference to the price and the manner of fixing the price, as follows:

"Would state in this matter that we should be glad to have Mr. Beirne appoint one appraiser. We appoint Charlie Hopkins and Mr. Hopkins and Mr. Beirne's appraiser appoint one man; these three make estimates on these fixtures and we will abide by any decision the three may make as to settlement."

It seems plaintiff appointed a Mr. Jones, and he with Mr. Hopkins appraised the property at $100 value. They did not select a third man, and neither party appears to have gone before them with evidence, and that the arbitrators in fact heard no evidence as to the value of the property.

It is urged by appellant the court erred in dissolving the injunction because the verified pleadings and evidence show that injunction was the proper remedy. It seems to be appellant's contention and the appellee did not deny the fact alleged in the petition, as asserted by the appellant, that as a matter of law he was entitled to the continuation of the temporary injunction. The judge granting the temporary writ indorsed his flat on the petition, setting the case for September 1, 1919, directing the clerk to issue notice to the defendant. The defendant filed its answer on the day set, and on the 5th the court heard evidence entering an order dissolving the injunction, from which this appeal is taken. We think the injunction issued on the fiat of the judge was "temporary" within the definition of that term, as given by the Supreme...