Dreeben v. Sidor
| Decision Date | 08 December 1952 |
| Docket Number | No. 6261,6261 |
| Citation | 254 S.W.2d 908 |
| Parties | DREEBEN v. SIDOR. |
| Court | Texas Court of Appeals |
C. C. Renfro, Dallas, for appellant.
Jackson C. Burroughs, Dallas, for appellee.
This is an appeal from a judgment denying the appellant, Milton Dreeben, any recovery on a $5,000 note executed by the appellee, John Sidor.
It appears that on January 1, 1947, the parties formed a partnership for the manufacture and sale of pants to operate under the name of Sidor Pants Company. It was agreed that the business should continue from the date it was organized until it was dissolved by mutual consent. The partnership operated at a financial gain during its first year but thereafter lost money. Immediately prior to March 5, 1949, the parties agreed to dissolve the partnership. The agreement, which was reduced to writing, provided for the dissolution of the partnership, vested the appellee with all the assets of the business and stipulated that he was entitled to carry on and continue the business under the name of the Sidor Pants Company. The appellee agreed to pay all the liabilities arising out of the parntership, to assume the partnership indebtedness, and to execute a note for $5,000 payable to the appellant in six equal monthly installments. On March 5, 1949, the appellee duly executed such promissory note and delivered it to the appellant.
The appellee took charge of the business, handled all production, received all money, paid all the employees, made payments on the bank note previously owed by the partnership and had complete charge of the business. It appears that the appellee conducted the business, without any assistance from the appellant, until the following January, when he liquidated it and paid all the general creditors and the bank.
The appellants sued the appellee to recover $5,000 as principal, plus interest, attorneys' fees and costs.
The appellee by answer alleged, among other things, that the note had been obtained by fraud and by misrepresentations made for the purpose of inducing the appellee to execute the note; that the appellant and he had been partners in the manufacture and sale of pants; that the business had been badly in need of capital; that the appellant had represented to him that if he would give the appellant a note for $5,000 and sign an agreement dissolving the partnership, the appellant would show the note and the agreement to his uncle, who would lend the appellant $10,000; that the appellant would place $7,500 of this amount in the partnership business, destroy the note and reestablish the partnership, and the parties would continue business as before. The appellee prayed that the note be cancelled.
In a supplemental petition the appellant pleaded the terms of the dissolution agreement; he pleaded that as a result of the agreement the appellee had taken full possession of the business; and that, later, the appellee had sold all of the business assets and retained the proceeds. The appellant alleged that he had relied on the terms of the dissolution agreement, that he had accepted the appellee's note in payment of his interest in the business, and that he would not have surrendered his share of the partnership if he had known that the appellee would not carry out the terms of the dissolution agreement or pay the note.
By a trial amendment the appellee also pleaded that eight months after the alleged sale the parties had entered into another agreement, viz., that if the appellee would liquidate the business, pay all the debts and relieve the appellant from the liability thereunder, the appellant would cancel the note.
The appellant filed a motion for summary judgment which was granted by the trial court. This judgment was reversed and the cause remanded for another trial by the Fifth Court of Civil Appeals, Sidor v. Dreeben, 236 S.W.2d 841.
This trial was to a jury. In answer to special issues the jury found that the appellant had represented to the appellee that he had wanted the note and the partnership dissolution agreement only for the purpose of showing them to his relative and thus to obtain funds which would be put into the business; that the appellant represented to the appellee that if he would sign the note and dissolution agreement, both would be destroyed after the borrowed money was put into the business, that the note would never be presented for payment and that the business would continue as a partnership. The jury found that these representations were false, that they had been made for the purpose of inducing the appellee to execute the note and the partnership dissolution agreement, and that the appellee had relied upon the representations made by the appellant. The jury found that the parties had agreed in November, 1949, that the appellant should liquidate the business and pay the debts and that, when the creditors were satisfied, the appellant would cancel the appellee's note. Based on this verdict, the trial court rendered judgment decreeing that the note be cancelled and that the appellant take nothing by reason of his suit. From this judgment the appellant excepted and duly perfected his appeal to the Fifth Court of Civil Appeals. Later this appeal was transferred to this Court by the Supreme Court of Texas in its order equalizing the dockets of the Courts of Civil Appeal.
The appellant contends the court erred in refusing to submit to the jury his requested special issues Nos. 1 and 2. They read:
'Do you find from a preponderance of the evidence that John Sidor executed the dissolution agreement and the $5,000 note dated March 5, 1949, for the purpose of buying the interest of Milton Dreeben in the partnership?
'Do you find from a preponderance of the evidence that defendant, Sidor, operated Sidor Pants Company as his individual business form March 5, 1949, until he sold the machinery and equipment and liquidated the business?'
These men were partners. There is no evidence that there were any disagreements between them. On the contrary, they worked together relying one on the other. The promissory note and the dissolution agreement are clear and unambiguous. In the absence of fraud, accident or mistake, it is conclusively presumed that the parties to a contract are familiar with and understand its terms. It is the...
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Cleaver v. Dresser Industries, 1156
...briefed as required by Rule 418, T.R.C.P., is waived. Lott v. Lott, 370 S.W.2d 463, 465 (Tex.Sup.1963); Dreeben v. Sidor, 254 S.W.2d 908, 912 (Tex.Civ.App. Amarillo 1952, ref'd n. r. e.); Keahey v. Jones, 291 S.W.2d 767, 770 (Tex.Civ.App. Amarillo 1956, n. w. h.); City of Houston v. Socony ......
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Soto v. Phillips
...between ultimate issues and evidentiary issues in the context of special issue submission. See Dreeben v. Sidor, 254 S.W.2d 908 (Tex.Civ.App.--Amarillo 1952, writ ref'd n.r.e.). Under the Tarter definition, the truthfulness or honesty of a witness is not an ultimate issue on which a judgmen......
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4M Linen & Uniform Supply Co., Inc. v. W.P. Ballard & Co., Inc., 01-88-00855-CV
...to open and close, we will affirm the ruling on appeal. Those are not the facts in this case. In Dreeben v. Sidor, 254 S.W.2d 908, 912 (Tex.Civ.App.--Amarillo 1952, writ ref'd n.r.e.), another case cited by 4M Linen, the defendant in a suit on a note admitted executing the note, but claimed......
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Slayton v. White
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