Chamblin v. Webb

• Decision Date: 29 October 1941
• Docket Number: No. 11037.,11037.
• Citation: 155 S.W.2d 676
• Parties: CHAMBLIN v. WEBB.
• Court: Texas Court of Appeals

155 S.W.2d 676

CHAMBLIN v. WEBB.

No. 11037.

Court of Civil Appeals of Texas. San Antonio.

October 29, 1941.

Appeal from County Court at Law No. 1, Bexar County; McCollum Burnett, Judge.

Action on contract by T. S. Chamblin against J. M. Webb. Judgment for defendant, and plaintiff appeals.

Reversed and remanded for new trial.

Hoyo, Sharpe & Williams, of San Antonio, for appellant.

Le Roy McCall, of Beaumont, for appellee.

SMITH, Chief Justice.

J. M. Webb executed and delivered three contracts to Texas Historical Society in this form:

                "$255.00 Texas Historical Society $255.00
                           San Antonio, Texas
                               Hamshire, Tex. 9/14, 1937
                

I herewith authorize the Texas Historical Society to have prepared a portrait engraving from my photograph to be inserted in the revised edition of the new Encyclopedia of Texas, for which I promise to pay the sum of Two Hundred and Fifty-Five Dollars to said Company or order at National Bank of Commerce, San Antonio, Texas. Payable on submission of proof of said engraving. I also agree to furnish my photograph within thirty days from date, failure of which will render one-half of the above amount payable upon demand. This order is not subject to countermand, and no oral agreement unless stipulated in writing herein will be acknowledged.

                                     Name J. M. WEBB
                                     Address Hamshire, Tex."
                

The sums payable under the three contracts were $28.50, $255 and $255, respectively. On March 1, 1940, Texas Historical Society assigned the three contracts to T. S. Chamblin, who brought this action against Webb to recover thereon.

The record shows that Texas Historical Society was owned by E. A. Davis, operating under that trade name. The record further shows that T. S. Chamblin was a former employee of Davis and the Society.

Webb defended on the ground of failure of consideration, alleging that Davis, as plaintiff Chamblin's "authorized agent," had orally agreed, when the contracts were executed, to put photographs and autobiographies of Webb and his wife in a forthcoming copy of "New Encyclopedia of Texas," and furnish a copy thereof to Webb and distribute 5000 copies into Texas homes within certain periods; that time was the essence of these agreements, that Davis failed to comply with those agreements within the time stipulated; that said oral agreements constituted the "real consideration" for said contracts, and that Davis' non-compliance therewith constituted a failure of...