Ft. Smith Couch & Bedding Co. v. George

• Decision Date: 19 May 1920
• Docket Number: (No. 6218.)
• Citation: 222 S.W. 335
• Parties: FT. SMITH COUCH & BEDDING CO. v. GEORGE.
• Court: Texas Court of Appeals

222 S.W. 335

FT. SMITH COUCH & BEDDING CO. v. GEORGE.

(No. 6218.)

Court of Civil Appeals of Texas. Austin.

May 19, 1920.

Appeal from Bell County Court; M. B. Blair, Judge.

Suit by the Ft. Smith Couch & Bedding Company against T. B. George, in which the defendant interposed a plea in reconvention. From the judgment rendered, plaintiff appeals. Reversed and remanded.

Clem C. Countess, of Belton, for appellant.

BRADY, J.

Appellant brought this suit against appellee in a justice's court, to recover the sum of $155 upon a verified account. Appellee filed a sworn denial of the account, and by plea in reconvention asked judgment for damages against appellant in the sum of $175 for breach of contract. The jury in the justice's court returned a verdict for appellant for $150, and against appellee on his plea in reconvention. Upon appeal to the county court, the jury, without any written charge from the court, returned a verdict for appellant for the full amount of its demand, and for appellee for the full amount of his claim, and from the judgment entered thereon appellant has prosecuted this appeal.

Opinion.

The first assignment of error complains of the refusal of the trial court to set aside the verdict and judgment, and to grant a new trial, "because the verdict of the jury is contrary to the law and to the evidence." This assignment is the first ground in the motion for new trial, and, in effect, is no more than a claim that the trial court erred in not granting a new trial, without specifically pointing out the particular ruling complained of in the court below or here. Under the most liberal interpretation of the rules, we think this assignment must be held bad, because of its generality. Therefore we decline to consider it.

The remaining assignments attack the ruling of the trial court in refusing to sustain certain special exceptions to appellee's plea in reconvention. One of these exceptions raised the point that the contract alleged as the basis of the plea of reconvention was unilateral and void for the want of mutuality. After careful consideration of the question, we have concluded that the assignment presenting this question should be sustained, and the cause reversed for such error.

The contract as pleaded was an agreement that appellee should act as appellant's exclusive salesman in the territory of Temple, Tex., and appellant agreed that no other store or firm should be given the right to handle its goods in the town of Temple. It was not alleged that appellee in any way bound himself to buy any amount of goods from appellant, nor for any definite time to abide by the terms of the contract, which could be abandoned at will by appellee. The contract seems to have been clearly unilateral and unenforceable. Railway v. Mitchell, 38 Tex. 85; Tyler Ice Co. v. Coupland, 44 Tex. Civ. App. 383, 99 S. W. 133; Railway v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467; Mutual Film Corporation v. Morris, 184 S. W. 1060.

Since we have decided to remand the case for another trial, it is proper to indicate our views upon the remaining questions presented in the brief.

We are of the opinion that, if an enforceable contract should be alleged, nevertheless appellant would not be liable for damages for refusing to sell appellee its goods, and in selling to his competitors, if the financial condition of appellee was such that he was unable to pay for same. Assuming the validity and binding force of the...