English v. Southwest Broadcasting Co.

• Decision Date: 30 January 1935
• Docket Number: No. 8066.,8066.
• Parties: ENGLISH et al. v. SOUTHWEST BROADCASTING CO., Inc., et al.
• Court: Texas Court of Appeals

Page 296

81 S.W.2d 296

ENGLISH et al. v. SOUTHWEST BROADCASTING CO., Inc., et al.

No. 8066.

Court of Civil Appeals of Texas. Austin.

January 30, 1935.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

Suit by the Southwest Broadcasting Company, Incorporated, and another against Mildred English and her husband. From a judgment in favor of plaintiffs, defendants appeal.

Judgment affirmed in part, and in part reversed and rendered.

Fellbaum & Fellbaum, of San Antonio, for appellants.

Polk Shelton and Brooks & Yarbrough, all of Austin, for appellees.

McCLENDON, Chief Justice.

This case arose out of the following facts shown by the pleadings:

April 14, 1932, appellee Edwards purchased from appellant Mrs. English 10,000 shares of stock in the K. U. T. Broadcasting Company for $12,000, $5,000 cash, and the remaining $7,000 evidenced by a negotiable promissory note, payable in installments of $150 per month for twelve months, beginning June 15, 1932, and $250 per month thereafter. Edwards executed to Mrs. English a chattel mortgage upon the stock to secure the note, which authorized foreclosure at public or private sale with notice. Under a collateral agreement, Mrs. English stipulated that the purchase of the stock was made upon the basis of the corporation being free of indebtedness, and it was agreed that the indebtedness did not exceed $500, and that Edwards should hold out $500 until appellants furnished receipts covering same; and, further, that if Edwards or his assigns should be required to pay any of such indebtedness, then he should have the right to credit the amount thereof upon the note. Edwards later assigned the stock to the appellee Southwest Broadcasting Company.

Edwards and the Southwest Broadcasting Company brought this suit against Mrs. English (joining her husband therein), alleging a fraudulent misrepresentation on the part of appellants to the effect that there was a valid federal broadcasting license in existence owned by the K. U. T. Company, which constituted a material inducement in the transaction; that such representation was false, as the license had already expired, had not been renewed, had been applied for by a third party, and that it cost appellees the sum of $1,600 to acquire such license. In addition to certain payments made on the note, it was also alleged that the amount of indebtedness of the corporation was $250.20 in excess of the $500, all of which appellees had been compelled to pay. Judgment was sought for the damages resulting from the fraud and the amount of the indebtedness, and appellees prayed to have these amounts and the alleged payments credited upon the note. An injunction preventing sale of the mortgaged stock at private sale was also sought.

In a trial to the court without a jury, judgment was rendered for plaintiff (1) permanently enjoining defendants from selling the mortgaged stock "at any character of private sale"; (2) in favor of plaintiffs for $1,600 on the fraud plea, which was decreed to be credited upon the note; (3) decreeing that all amounts due upon the note up to January 15, 1933, plus an additional sum of $127.87, had been paid, and that appellees had discharged obligations against the K. U. T. Company, amounting to $250.20 in excess of the $500 referred to above; and (4) ordering the note produced and the above amounts entered as credits thereon.

The appeal is by Mrs. English (joined by her husband), and is predicated upon fifteen assignments of error. Of these, five (Nos. 1, 3, 4, 5, and 6) complain of the action of the court in granting, modifying, and refusing to dissolve a temporary injunction. These...