Clary & Sons Plumbing & Heating v. Local Trademarks

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: Clary & Sons Plumbing & Heating v. Local Trademarks, 250 S.W.2d 916 (Tex. Ct. App. 1952)
• Decision Date: 27 June 1952
• Docket Number: No. 2940,2940
• Parties: CLARY & SONS PLUMBING & HEATING v. LOCAL TRADEMARKS, Inc.

Page 916

250 S.W.2d 916

CLARY & SONS PLUMBING & HEATING v. LOCAL TRADEMARKS, Inc.

No. 2940.

Court of Civil Appeals of Texas, Eastland.

June 27, 1952.

Rehearing Denied July 19, 1952.

A. A. Heathington, Abilene, for appellant.

Cummings & Mote, Abilene, for appellee.

GRISSOM, Chief Justice.

Clary & Sons Plumbing & Heating, acting through a partner, Mr. R. C. Clary, signed an order addressed to Local Trademarks, Inc., presented to him by N. A. Crain, wherein the Clarys authorized Local Trademarks, Inc., to ship to them 'Fifty-Two (52) mats size about 1 Col. and reading matter,' for which they agreed in the order or contract to pay $182, paying $45 then and agreeing to pay $13.65 on December 1st and the same amount on the first day of each month thereafter until the whole amount was paid, for the right 'to use the above mats and reading matter for one year only.' The order blank contained an agreement that neither party should be responsible for any representations not written therein and 'this agreement is subject to your acceptance at New York.' The order was received and marked accepted by Local Trademarks, Inc.

The Clarys did not pay any monthly installment and Local Trademarks, Inc. brought suit for the balance. Clary & Sons answered that Crain came to their place of business and represented that for the $182 they would get 52 mats at $3 per mat, with their name and telephone number on the mats, and certain window display cards and stencils to print advertising on their car and 'pick-up;' that said representations were false and Clary & Sons relied thereon and believed that 'said agent would fill out the order blank in accordance with the terms of their agreement, and did not read same after it was filled out by said N. A. Crain, agent of the plaintiff; * * * that he did not fill out the order blank in accordance with the agreement made by defendant;' that the mats were not as represented; that they did not contain defendant's name and telephone number and defendant never received the window displays nor the stencils; that the statements and representations 'made by said agent as to what he had written into the order were false' and were made for the purpose of defrauding defendant, and that the $45 paid was obtained through said fraudulent representations of plaintiff's agent. Wherefore, defendant prayed that plaintiff take nothing and that defendant recover the $45 paid to plaintiff 'on the false representations of plaintiff's agent.'

The case was tried to a jury and it found that Crain 'made certain statements and representations of material facts to R. C. Clary' and that the statements made were not false. Whereupon, the court rendered judgment for plaintiff for the unpaid balance and, after quoting said jury findings, recited that the judgment was based thereon and on 'such additional consideration and findings as were authorized by law.' Clary & Sons Plumbing and Heating has appealed.

Appellant's principal complaint is based on the contention that the judgment should be reversed because no issue of performance was raised by the pleadings, submitted to the jury or requested by appellee. The case having originated in the Justice Court, in the absence of an affirmative showing to the contrary, we are required to presume that any deficiencies in appellee's written pleadings were supplied by oral pleadings. Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ.App., 140 S.W.2d 491, 193. The burden is on appellant to show that the trial court committed some specific error that probably caused the rendition of an improper judgment. R.C.P. 434. Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191. Furthermore, the...