C. H. Mountjoy Parts Co. v. Perfect Circle Co.

Decision Date16 March 1938
Docket NumberNo. 10271.,10271.
Citation119 S.W.2d 186
PartiesC. H. MOUNTJOY PARTS CO. v. PERFECT CIRCLE CO.
CourtTexas Court of Appeals

J. B. Lewright and R. G. Harris, both of San Antonio, for plaintiff in error.

Sylvan Lang, Morris Wise, and Dalton Cross, all of San Antonio, for defendant in error.

SMITH, Chief Justice.

The Perfect Circle Company recovered judgment, upon a jury verdict, against C. H. Mountjoy Parts Company for $1,213.45 damages for breach of contract, and liquidated damages thereon, and the Parts Company brought this writ of error. The parties will be referred to as appellant and appellee.

Appellee is engaged in the manufacture and sale of automobile parts, and appellant is distributor, on consignment, of such articles. Both parties are corporations, appellee being domiciled in Indiana, and appellant, in Texas, with stores in Austin and San Antonio.

For several years prior to this controversy appellant had carried, on consignment as a distributor, piston rings made and consigned to it by appellee, upon written contracts between the parties, by which appellant was obligated, during the life of the then current contract, to "feature," advertise, carry in stock and sell appellee's product to the exclusion of similar products of other manufacturers. It was further stipulated in the contract that appellee could at its option terminate the same in event appellant violated any of its provisions, including the one that appellant should carry in stock and feature appellee's products, exclusively, and that in event appellee exercised such option and terminated said contract, appellant should pay appellee ten per cent of the net cost value of unsold articles returned by appellant to appellee upon such termination, "said ten per centum being the agreed compensation liquidation expense and charge of consignor, and which consignee agrees to pay in addition to compliance with all other terms hereof upon consignee cancelling this Contract and Agreement before the due expiration thereof."

The record shows, and the jury found, that after operating a few months under contract executed on February 7, 1935, appellant violated both the provision therein that he carry appellee's product exclusively, and advertise the same, by carrying and "featuring" similar products of another manufacturer, and by ceasing to advertise and push sales of appellee's product. When appellee discovered this discrimination against its product, it promptly terminated the contract, as provided for therein.

At that time appellant had on hand, in its two stores, a large amount of appellee's product, of a net cost value of approximately $7,000, which it returned to appellee, as provided in said contract. Appellee claims in this suit, however, that, in returning the product appellant failed to include, or account for, certain articles which had been consigned to it of the net value of $508.30, which amount, plus $705.09 as liquidated damages stipulated in the contract, made the sum of $1,213.45, for which appellee sued and recovered.

In the contract in question appellant covenanted, with reference to this inquiry, first, to carry in stock no piston rings other than of appellee's make, and, second, shall "mention and feature only Perfect Circle piston rings" in all its stationery, catalogues, price lists, correspondence, "and all other written or printed matter" used or issued by it. The jury found that appellant violated each of said covenants, and that appellee waived violation of the first, but did not waive violation of the second.

Appellant contends, in its first assignment of error and propositions thereunder, that both said covenants should be treated as one, and that the waiver of one was a waiver of both, thereby releasing appellant from damages. We overrule the contention. The two covenants were separate and distinct, and the waiver of one was not a waiver of the other. Nor can appellee be held to have waived said covenants under the contentions of appellant in its second, third and fourth assignments of error, which will be overruled. Appellant's fifth assignment of error will be overruled, since it presents in this Court, for the first time, an objection to a special issue not made in the court below, and the error, if any, not being fundamental, will not be noticed here, in...

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3 cases
  • Traders & General Ins. Co. v. Collins
    • United States
    • Texas Court of Appeals
    • March 30, 1944
    ...and left itself in no condition to complain on appeal, McGuire v. Roemer, Tex.Civ.App., 162 S.W.2d 1048; C. H. Mountjoys Parts Co. v. Perfect Circle Co., Tex.Civ.App., 119 S.W.2d 186; Baker Hotel v. Rogers, Tex.Civ.App., 157 S.W.2d 940; Herndon v. Halliburton, etc., Tex.Civ.App., 154 S.W.2d......
  • City of Dallas v. Priolo
    • United States
    • Texas Supreme Court
    • June 20, 1951
    ...not be given effect as an objection to the issues as given. Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; C. H. Mountjoy Parts Co. v. Perfect Circle Co., Tex.Civ.App., 119 S.W.2d 186; Belzung v. Owl Taxi, Tex.Civ.App., 70 S.W.2d 288; 41 Tex.Jur., p. 1065, sec. 253. The point is Another poin......
  • Texas Employers' Insurance Association v. Jones, A-10628
    • United States
    • Texas Supreme Court
    • July 14, 1965
    ...not be given effect as an objection to the issues as given. Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; C. H. Mountjoy Parts Co. v. Perfect Circle Co., Tex.Civ.App., 119 S.W.2d 186; Belzung v. Owl Taxi, Tex.Civ.App., 70 S.W.2d 288; 41 Tex.Jur., p. 1065, sec. The rule applicable here was s......

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