Diacomis v. Wright

• Decision Date: 04 February 1931
• Docket Number: No. 1403-5589.,1403-5589.
• Citation: 34 S.W.2d 806
• Parties: DIACOMIS v. WRIGHT et al.
• Court: Texas Supreme Court

34 S.W.2d 806

DIACOMIS v. WRIGHT et al.

No. 1403-5589.

Commission of Appeals of Texas, Section A.

February 4, 1931.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Thomas Diacomis against G. G. Wright and another. Judgment sustaining a general demurrer to plaintiff's petition was affirmed as to defendant G. G. Wright and reversed as to defendant J. S. Wright by the Court of Civil Appeals [20 S.W.(2d) 139], and plaintiff brings error.

Judgment of the District Court reversed, and judgment of the Court of Civil Appeals affirmed in part and in part reversed and cause remanded to the District Court.

Craig & Van Slyck, of Dallas, for plaintiff in error.

Eckford & McMahon, of Dallas, for defendants in error.

HARVEY, J.

This is a suit brought by the plaintiff in error, Tommy Diacomis, to recover damages from G. G. Wright, and, in the alternative, from J. S. Wright, for the breach of a lease contract. Each of the defendants interposed a general exception to the plaintiff's petition, which being sustained by the trial court, the cause was dismissed.

Diacomis appealed, and the Court of Civil Appeals affirmed the judgment of the trial court with respect to G. G. Wright, but reversed and remanded the case as to J. S. Wright. 20 S.W.(2d) 139. Complaining of the judgment of the Court of Civil Appeals in favor of G. G. Wright, Diacomis applied for the writ of error, which was granted. The only question before us goes to the sufficiency of the plaintiff's petition as against G. G. Wright.

The allegations of the petition so far as material here are as follows:

"For cause of action herein plaintiff would show; that heretofore to-wit on the 11th day of October, 1926, defendant Gilbert G. Wright, acting by and through his lawfully authorized agent and representative J. S. Wright, made, executed and delivered to plaintiff the following lease-contract in terms substantially as follows, viz.:

"`Dallas, Texas. Lease on Sandwich Shop located at 315 South Akard St., by and between J. S. Wright and Tom Disconis for term of one year beginning on the first day of January, 1927, and ending on the first day of January, 1928, for a monthly rental of $100.00 per month, $300.00 already paid to J. S. Wright by Tom Diaconis for the first three months rental as an expression of good faith that this lease will be carried out.'

                                 "`[Signed] J. S. Wright
                  "`October 11th, 1926.'
                

"That while said contract purports to be executed to `Tom Disconis', as stated lessee, Plaintiff's name is in Tom Diacomis, but that plaintiff is the same person to whom said lease was executed the name `Disconis' being inadvertently misspelled and made as `Disconis' instead of `Diacomis', plaintiff's real and correct name. Plaintiff would further state; that while the said lease-contract is executed in the name of J. S. Wright and signed by him alone, nevertheless plaintiff says that Gilbert G. Wright was and is in fact the owner of said leased premises, and in executing the same the said J. S. Wright was acting for and on behalf of the said Gilbert G. Wright, with full authority to act for and on behalf of said Gilbert G. Wright in the matter of said lease so executed; * * * that J. S. Wright is the son of Gilbert G. Wright...