Foster v. H. O. Wooten Grocer Co.

• Decision Date: 19 November 1954
• Docket Number: No. 3123,3123
• Citation: Foster v. H. O. Wooten Grocer Co., 273 S.W.2d 461 (Tex. Ct. App. 1954)
• Parties: Clyde FOSTER and Billy Mitchell, Appellants, v. H. O. WOOTEN GROCER COMPANY, Appellee.
• Court: Texas Civil Court of Appeals

Page 461

273 S.W.2d 461

Clyde FOSTER and Billy Mitchell, Appellants, v.H. O. WOOTEN GROCER COMPANY, Appellee.

No. 3123.

Court of Civil Appeals of Texas, Eastland.

Nov. 19, 1954.

Rehearing Denied Dec. 17, 1954.

Dillard, Cooke & Dillard, Lubbock, for appellants.

McMahon, Springer, Smart & Walter, Abilene, for appellee.

GRISSOM, Chief Justice.

H. O. Wooten Grocer Company sued Kelly L. Fregia, Clyde Foster and Billy Mitchell, residents of Lubbock County, in Taylor County.Plaintiff sued on an open account for goods, wares and merchandise sold to Fregia and for which, it was alleged, he agreed to pay $155.54, which amount, it was alleged, was just and reasonable.Plaintiff alleged that prior to said sale and delivery Fregia executed a written agreement to pay same in Taylor County, with ten per cent interest after maturity, and a reasonable attorney's fee; that all defendants had transferred the stock of goods of said grocery store in violation of the Bulk Sales Law, Vernon'sAnn.Civ.St. art. 4001 et seq.; that Fregia and Foster were partners and Mitchell was in possession of the merchandise.

Plaintiff's petition was filed on August 5, 1953 and on August 31, 1953, Foster and Mitchell filed a general denial.On March 20, 1954, plaintiff filed a supplemental petition, alleging the filing of the prior petition which referred to a sworn account attached thereto as Exhibit A and that plaintiff had discovered said account was not attached and a verified account was attached to said supplemental petition, which was filed for that purpose only.Thereafter, on March 23, 1954, Foster and Mitchell filed their pleas of privilege to be sued in Lubbock County.They later filed a plea to the jurisdiction of the County Court because the amount in controversy, exclusive of interest and attorney's fees, was less than $200, to wit: $155.54, the amount of the account, and they alleged plaintiff had falsely alleged the amount in controversy to be $255.54, knowing same was untrue and excessive by more than $100, for the purpose of giving said County Court jurisdiction.

Foster and Mitchell also excepted to the petitions and the verified account because plaintiff alleged the goods, wares and merchandise were delivered to defendants and said allegation was not sufficiently definite to enable them to prepare their defense, or to put them on notice, of the matters expected to be proved by the plaintiff as constituting 'goods, wares and merchandise.'

At the close of the testimony, plaintiff filed a motion to instruct a verdict for the plaintiff(1) because the uncontradicted evidence conclusively showed plaintiff's account was just and correct unpaid and that Fregia and Foster were liable therefor as partners and said alleged partnership was not denied under oath and must be taken as admitted, and, further, because the uncontradicted evidence conclusively showed that Fregia and Foster were partners when the merchandise was sold to them; (2) because the uncontradicted evidence conclusively showed that after the merchandise was sold and delivered to Fregia, he transferred his entire stock of merchandise to Foster and Foster transferred it to Mitchell and Mitchell transferred it, in bulk, back to Foster, and that each of said transfers was in violation of the Bulk Sales Law; (3) because the uncontradicted evidence showed that not only did all defendants violate the Bulk Sales Law but that, thereafter, Foster and Mitchell each disposed of the merchandise...