Brown v. Durham

• Decision Date: 04 May 1893
• Citation: 22 S.W. 868
• Parties: BROWN et al. v. DURHAM.
• Court: Texas Court of Appeals

22 S.W. 868

BROWN et al. v. DURHAM.

Court of Civil Appeals of Texas.

May 4, 1893.

Appeal from Gregg county court; F. J. McCord, Judge.

Action by D. D. Durham against Brown & Flewellen and A. L. C. Hurst. Judgment for plaintiff. Defendants appeal. Reversed.

Davis & Terry, for appellants.

WILLIAMS, J.

This was an action for damages for libel, commenced in the district court by appellee against appellants. Appellant Hurst was the general manager of an organization called the "Texas Retail Merchants' Protection Association," whose place of business was at Waco. The plan and purposes of the association will appear from the following circular, which was distributed with a view to securing subscribers and extending its membership: "Protect Yourself Against Those Who Buy and Pay Not. Potent reasons why you should join the Retail Merchants' Protective Association of Texas: (1) To get a book which has in it already the names of many thousand merchant breakers in Texas, and which is being supplemented every 60 days with as many more as fail to make satisfaction in a reasonable time for claims passing through the agency against them, and whose practice is to bleed you and others who can be duped by them. (2) To send your lost and questionable claims through the agency to be tested, which will either give you the money, or their names to the book, that all who have the book may be put on notice, and save their goods. (3) To collect, and help others collect, thousands of dollars by this system that never can be collected by law, nor by a personal effort. (4) To make those who have helped to break nearly all the retailers that have gone before you go to work for a living, and appreciate credit — when they get it — enough to pay for what they get, and to make the reckless buyer more cautious, and pay more promptly, that you may be enabled to meet your bills promptly, and sell for less profit. (5) To make those who are slipshod, and those who betray confidence, change their tactics, or steal, or leave the state to those who can be trusted for the necessaries of life. (6) To stop so many retailers from breaking, and help to make for yourself and Texas a sound credit system, which was lost by exemption, and which cannot be regained except by a co-operative effort of all retailers. (7) Because this system is cheap and effectual, legitimate, and popular with those who have tried it, and understand and take an interest in it, and because it has been organized and perfected in Waco, and has received the indorsement of the retailers, and the recommendation of the wholesalers, having been tried and observed by them, and because it is a state institution and the only one in the state, and because it is indispensable to the success of your business, and will cost you nothing at all if you carry out instructions. (8) Because, if you are really a merchant, you know that something is necessary for the protection of the retail trade, and that any system depends for success on the patronage and co-operation of its advocates, and that if you wait for your neighbor to act first no system can ever be a success, and it will finally be said that Texas retailers have not enough pluck and intelligence for self-preservation, and they will surely meet the fate of their predecessors in business. (9) Because, when your neighbor joins, and finds who are unworthy of credit, and cuts them off, they go to you and obtain credit, because you know not their standing, and thus they beat you as they did him. (10) You should join because you know the reasons above given are good and true, and that your business interests will not admit of delay. Forward your application, and oblige, A. L. C. Hurst, Manager. Office 113½ South Fourth street, Waco, Texas."

As indicated in this document, members of the organization were allowed to send claims to the manager for collection. Upon receipt of a claim a circular letter (such as that set out below, addressed to appellee) would be sent to the debtor, and upon his failure to reply within the time specified his name would be entered in a book called the "Reference Book," and notices were sent out periodically to all of the subscribers, containing lists of names added after the last publication of such book. The effect intended to be given to the recording of a name in the book, and entering it upon the list, can be gathered from the foregoing paper, as well as from those which follow.

Appellants Brown & Flewellen, a firm of merchants doing business at Longview, Tex., became members of the association, and sent to it, to be dealt with in accordance with its established custom, a claim against appellee for $954.88, which grew out of the following facts: Brown & Flewellen furnished to appellee, who was a tie contractor, supplies and money, and received from the railroad company, and credited upon his account, moneys to which he was entitled in payment for ties furnished to it. These transactions ceased, but there had been no settlement, and no itemized account had been furnished to appellee, showing the state of his account, though a statement had been presented to him, showing the balance claimed by Brown & Flewellen. There was evidence that appellee owed Brown & Flewellen a balance of a less amount than the claim placed in the hands of Hurst. Appellee did not deny that he owed a balance, but claimed at the trial that he had not had an opportunity of ascertaining how the account stood before the alleged libel was published. When Hurst, the manager, received the claim from Brown & Flewellen he addressed to appellee the following communication:

"Exhibit A. Maxims: The honest consumer and the merchant are alike benefited by a sound credit system. Reputation for paying just debts is capital for all who are deprived of credit by exemption. Exemption robs the masses of legal credit, and makes money hard to obtain, even at a high rate of interest. Exemption necessitates a system of protection to trade, because so many consumers claim under it, and defy collections.

"Waco,...