Edward Thompson Co. v. Sawyers

• Decision Date: 16 November 1921
• Docket Number: (No. 3030.)
• Citation: 234 S.W. 873
• Parties: EDWARD THOMPSON CO. v. SAWYERS.
• Court: Texas Supreme Court

Page 873

234 S.W. 873

EDWARD THOMPSON CO. v. SAWYERS.

(No. 3030.)

Supreme Court of Texas.

November 16, 1921.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Action by the Edward Thompson Company against W. R. Sawyers. Judgment for defendant on plaintiff's complaint, and for plaintiff on defendant's counterclaim. Affirmed by Court of Civil Appeals, which, with motion for rehearing pending, certified certain questions to Supreme Court. Questions answered.

McGown & McGown and E. T. Phillips, all of Fort Worth, for appellant.

C. B. Ambrose, of Fort Worth, for appellee.

GREENWOOD, J.

The certificate of the honorable Court of Civil Appeals discloses the following facts:

Appellant sued appellee in the justice's court for a balance of $127.50 on a written contract in which appellee requested appellant to deliver to him 32 volumes of the American & English Encyclopædia of Law and four supplements thereto, for which he promised to pay $7.50 per volume in installments of $30, payable on December 1, 1907, and at the expiration of each six months thereafter up to and including December 1, 1911, it being stipulated that no representations or guaranties had been made by the salesman on behalf of appellant which were not expressed in the written contract.

After a trial in the justice's court, resulting in a judgment for appellee, the case was appealed to the county court, where appellee filed written pleadings, in which he admitted the execution of the written contract, but averred that, in order to induce appellee to sign the contract, appellant, by its agent, represented and agreed that it would continue to publish and deliver to appellee annual supplements for a period of not less than 15 years, or for so long as appellee should live or continue to practice law; that appellant knew at the time that it would not be able to issue annual supplements; that the representation and promise that appellant would issue and furnish supplements for the time stated was false and fraudulent and was intended to deceive appellee; that appellee was deceived thereby; and that it was in reliance on appellant's false and fraudulent representation and promise that appellee gave his subscription and executed the written contract on which appellant sued. Appellee further pleaded that appellant issued five annual supplements and then failed and refused to issue or deliver any more, that the 37 volumes of the Encyclopædia and supplements which were delivered and which appellee offered to return, were not worth more than $37, and that appellee had paid appellant $150 under the contract, and he pleaded that the consideration for the payments promised by him had partially failed, and he prayed that he be awarded damages against appellant in the sum of $113, and he also prayed for a rescission of the contract and the recovery of the $150 paid under the contract, and for any relief to which he might be entitled under the allegations of his answer.

For replication to appellee's answer, appellant pleaded a general denial, the statutes of frauds and of two-year limitation, and lack of authority on the part of its agent to make the representation and promise set up by appellee.

In answer to special issues a jury in the county court found: First, that appellant's agent did agree to furnish annual supplements for 15 years, or during the life of appellee or the time he was able to practice law; second, that appellant had notice of the agreement at the time it approved the order of appellee; and, third, that supplement No. 5 was sent to appellee in pursuance of the contract made by appellant's agent with appellee. On this verdict the county court rendered judgment that appellant take nothing by its suit, and that appellee recover nothing on his cross-action or counterclaim.

On the trial in the county court appellant objected to the admission of testimony to prove the representation and promise that appellant would continue to issue and furnish annual supplements for 15 years or for the duration of appellee's life or law practice on the ground that such testimony was an attempt to vary by parol evidence the terms of the written contract, which could not be done in the absence of proper allegations of fraud or mistake. The county court overruled appellant's objection and admitted the testimony.

Appellant also objected on the trial in the county court to the admission of testimony by appellee that after appellant failed to deliver an annual supplement after the fifth, and upon his refusal to make further payments, on two occasions collectors of appellant, whose names he did not remember, called upon him, and one of them stated that the West Publishing Company had sued appellant for an infringement of its copyright to publish the Encyclopædia and the supplements; that the courts decided the suit in favor of the West Publishing Company; and that appellant would not be able to issue any further supplements. The ground of objection to this testimony was that the collectors were not shown to have been clothed with such authority as to make their statements admissible against appellant. The county court admitted the testimony, overruling appellant's objection.

On appeal the Fort Worth Court of Civil Appeals affirmed the judgment of the trial court, overruling assignments of error complaining of the admission of the testimony to which appellant had objected, one of the judges dissenting.

With a motion for rehearing pending, the honorable Court of Civil Appeals certifies to us questions as follows:

First. Did the majority of the court err in...