Great Atlantic & Pacific Tea Co. v. Warren, 4107.

• Decision Date: 18 November 1931
• Docket Number: No. 4107.,4107.
• Citation: Great Atlantic & Pacific Tea Co. v. Warren, 44 S.W.2d 510 (Tex. App. 1931)
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. WARREN.
• Court: Texas Court of Appeals

Page 510

44 S.W.2d 510

GREAT ATLANTIC & PACIFIC TEA CO. v.WARREN.

No. 4107.

Court of Civil Appeals of Texas. Texarkana.

November 18, 1931.

Rehearing Denied November 26, 1931.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Action by J. W. Warren against the Great Atlantic & Pacific Tea Company.From judgment for plaintiff, defendant appeals.

Affirmed.

The suit was by appellee against appellant to recover $980 as damages the former claimed he suffered as the result of the breach (as alleged) by the latter of an oral contract whereby, it was alleged, appellee on or about October 1, 1929, agreed "to close out," quoting, "his business (as the operator of a meat market) entirely and not to engage in or be interested in the meat market business in the future in Fort Worth, Texas," and whereby, in consideration of appellee's doing so, appellant agreed it would give to appellee"employment," quoting, "with it indefinitely, but at least for one year from date of acceptance of the job, at a salary of not less than $38.00 per week, and a commission of 1¼ per cent. on all sales (of meat) in excess of $800.00 per week."Appellee alleged that he began work for appellant in the latter's meat market October 7, 1929, and continued such work until March 22, 1930, a period of twenty-four weeks, when he was discharged by appellant; and alleged, further, that after being so discharged, he sought employment elsewhere, "and tried," quoting, "in every manner known to him to earn what money he could, but was unable from the time of his discharge as aforesaid, up to October 7, 1930, when his year's employment was up under said contract, to earn anything except the sum of $84.00.That if said contract had not been breached and terminated, as herein aforesaid, plaintiff would have worked twenty-eight more weeks and would have earned the sum of $1064.00, being the amount of twenty-eight weeks work at $38.00 per week."In its answer appellant alleged that the contract was illegal and unenforceable against it because "for an indefinite time and could not have been performed with any certainty whatsoever either with the year subsequent to the alleged making thereof or with any certainty during the succeeding indefinite duration thereof."On special issues submitted to them, the jury found: (1) That appellee was employed by appellant for a period of one year; (2) that the contract "was closed" as between appellant and appelleeOctober 7, 1929; (3) that one Huber who employed appellee was authorized by appellant to act for it in making the contract; and (4) that appellee was able to earn only $34 from the time he was discharged until October 7, 1930.The judgment was in appellee's favor against appellant for the amount sued for, to wit; $980.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Wallace Malone, W. C. Prewitt, and A. J. Power, all of Fort Worth, for appellee.

WILLSON, C. J.(after stating the case as above).

It conclusively appeared from the evidence (as we understand it) that the contract sued upon was not in writing, was entered into October 1, 1929, and was for appellee's services as manager of appellant's meat market for one year beginning October 7, 1929.The facts being as stated, appellant insists it appeared the contract was within the inhibition in subdivision 5 of article 3995, Rev. St. 1925, against the bringing of an action "upon any agreement...