Blume v. Curson, 281

• Decision Date: 05 November 1969
• Docket Number: No. 281,281
• Citation: 447 S.W.2d 727
• Parties: Lloyd R. BLUME, Appellant, v. Donald J. CURSON et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 727

447 S.W.2d 727

Lloyd R. BLUME, Appellant, v. Donald J. CURSON et al., Appellees.

No. 281.

Court of Civil Appeals of Texas Houston (14th Dist.).

Nov. 5, 1969.

Rehearing Denied Dec. 3, 1969.

Wm. E. Mallia, Houston, for appellant.

John C. Ridley, Wm. J. Merrill, Kelley, Ryan & Merrill, Houston, for appellees.

TUNKS, Chief Justice.

In 1960, the appellant, Lloyd R. Blume, plaintiff in the trial court, was engaged in the mortgage business. In such business he arranged for loans to be made to property owners, which loans were secured by liens on the property owned by the borrowers. The lenders required that the borrowers have insurance coverage on the improvements of the property upon which the liens were given. This fact placed the appellant in an advantageous position for the solicitation of insurance business.

The appellee, Donald J. Curson and Ronnie K. Curson, a partnership doing business under the name of Painter, Reichman & Company, were in the insurance business as local recording agents, licensed under the terms of Article 21.14, Texas Insurance Code, V.A.T.S.

Blume, in his trial pleading, alleged that in 1960, he and the Cursons entered into an oral agreement under the terms of which he, as a licensed solicitor, would solicit insurance business on behalf of the Cursons as recording agents and that it was agreed that he would be paid one-half of the commissions resulting from the policies so solicited by him. He further alleged that it was agreed '* * * that all property rights to the insurance business so procured would belong to the Plaintiff, and that Defendants would use the information concerning said business only for the purpose of servicing said insurance and that upon termination of this agreement, Defendants would turn over all said information to the Plaintiff and refrain from using same for their own benefit or from in any way interfering with Plaintiff's use of same.' He alleged that the Cursons had later confirmed a part of the agreement by writing the following letter:

'Dear Lloyd:

'As discussed with you on several occasions this letter is to advise as following.

"All Insurance Policies Solicited By You As An Solictor For Painter Reichman & Company Is Solely Owned By You And Or Your Heirs In The Event Of Your Death'. In The Event Of Youe Death We Woyld Appreciate The First Opportunity To Purchase Same Since Painter Reichman & Company Has Handled Your Business From The Start.'

'I trust the intent of this letter will meet with your approval.'

The relationship between Blume and the Cursons was terminated by Blume on January 31, 1965. Blume demanded of the Cursons that they give to him all of the records concerning the insurance policies procured by him as solicitor. The principle records were copies of the insurance policies on which would appear the data that would be useful in soliciting renewals. The Cursons refused. The petition filed by the plaintiff in the trial court alleged that as a result of that refusal, 'Plaintiff has been damaged in the amount of $37,529.52, which he would show to be the fair market value of said insurance business * * *.' The prayer of plaintiff's petition asked damages 'for the fair market value of Plaintiff's insurance business converted by Defendants in the amount of $37,529.52 * * *,' etc.

The answer filed by the Cursons included several special exceptions, a general denial and a plea to the effect that the contract alleged by Blume was illegal because it was in violation of Article 21.14 of the Texas Insurance Code and Article 572 of the Vernon's Ann. Texas Penal Code. The defendants filed motion for summary judgment on the basis of their plea of illegality of the alleged contract. The trial court granted that motion and rendered judgment for the defendants. Blume has perfected his appeal from that judgment.

The appeal to this Court was perfected by the timely filing of a transcript containing various pleadings, the judgment of the trial court, certain summary judgment evidence and the appeal bond. The appellant's and the appellees' briefs were filed. In the appellees' brief it was pointed out that the trial court's judgment recited that it was based upon the court's consideration, among other things, of depositions on file and that those depositions were not part of the record before this Court so that this Court must presume that the contents of those depositions supported the trial court's judgment. Authorities were cited to support that contention. Thereupon the appellant filed a motion for leave to supplement the transcript already filed by the filing in this Court of depositions which had been filed in the trial court. Appellees filed opposition to that motion. The appellees, in their opposition to the filing of the depositions, took the position that they constituted...