Horton Mfg. Co. v. Hardy Light Co.
| Citation | 294 S.W. 320 |
| Decision Date | 31 March 1927 |
| Docket Number | (No. 2023.) |
| Parties | HORTON MFG. CO. v. HARDY LIGHT CO. et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Dallas County; Royall R. Watkins, Judge.
Action by the Horton Manufacturing Company against the Hardy Light Company and another. Judgment for defendants, and plaintiff appeals. Reversed and rendered.
Carter, Bailey & Berwald, of Dallas, for appellant.
J. E. Gilbert, and Gilbert & Hardy, all of Dallas, for appellees.
This suit was brought by appellant, Horton Manufacturing Company, against the Hardy Light Company, a corporatoin, and J. V. Hardy, trading as Hardy Light Company. The material allegations of the amended petition, stated briefly, are as follows: During the months of June, July, August, September, and October, 1921, and April, 1922, plaintiff sold and delivered to defendants certain goods, wares, and merchandise specified in account, for which defendants promised and agreed to pay the sum charged therefor, aggregating $2,305.42. In part payment therefor the Hardy Light Company, Incorporated, on January 6, 1922, executed and delivered its note in favor of plaintiff for $619.50, payable April 6, 1922, bearing interest at rate of 8 per cent. per annum from maturity, and containing 10 per cent. attorney's fee clause. On October 19, 1921, the defendant, Hardy Light Company, was incorporated to buy and sell goods, wares, and merchandise at wholesale and retail, which was the same character of business theretofore conducted by J. V. Hardy in the name of Hardy Light Company. At that time the defendant Hardy Light Company took over the property, or some of the property, then owned by J. V. Hardy, and succeeded to, and acquired, the business, property, contracts, and other things of value of the said J. V. Hardy in connection with the business which he had been conducting in the name of the Hardy Light Company. On October 25, 1921, November 16, 1921, and November 22, 1921, Hardy agreed and promised in writing to pay plaintiff all sums due on account of his purchases individually and under his trade-name. On the same dates said corporation in writing assumed, agreed, and promised to pay plaintiff said obligations of J. V. Hardy. After allowing credit for said note, there was a balance due upon the account in the sum of $1,107.41, and the balance due upon the note is $419.15, with interest and attorney's fees, for all of which the plaintiff sued. (The account sued upon, which by reference is made a part of the petition, shows the correct balance due to be $1,093.92.)
In due order of pleading, the Hardy Light Company set up that the matter in controversy against it was $419.15, with interest and attorney's fees, of which the county court at law alone had jurisdiction, and the plaintiff, for the purpose of conferring jurisdiction upon the district court, had fraudulently joined this demand with the open account against J. V. Hardy, for which account it was not, and never had been liable.
It also filed special exceptions of misjoinder of parties and causes of action in that the suit against it upon the note was improperly joined with the suit against Hardy upon the open account. To the merits it answered by general denial and special plea that it had never become surety for Hardy, and, if it had attempted to do so, it was ultra vires.
Hardy answered by like special exceptions as to misjoinder of parties and causes of action; general denial; and two-years statute of limitations in bar of the account sued upon.
The case was tried without a jury, the court reserving its ruling upon the plea in abatement and the exceptions until the conclusion of the trial, when it rendered judgment sustaining the plea in abatement of the Hardy Light Company, Incorporated, and dismissed the suit against it. The special exceptions of both defendants setting up misjoinder of parties and causes of action were also sustained. Upon the merits J. V. Hardy's plea of limitations was sustained, and judgment rendered that plaintiff take nothing against him.
Upon the trial the following facts were agreed to, viz.:
The account sued on was correct in so far as it represented sales and deliveries of goods, wares, and merchandise sold and delivered by plaintiff to J. V. Hardy, trading under the name of Hardy Light Company. Certain of the goods were redelivered to plaintiff by Hardy, and the corporate defendant bought them to the amount of $619.50, and in payment therefor executed the note sued on. After its incorporation, said defendant carried on and continued the same kind of business theretofore conducted by J. V. Hardy. The following correspondence was introduced in evidence:
Below the last quoted letter, and upon the same sheet, the following letter was written:
Hardy testified:
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