J. M. Radford Grocery Co. v. Jamison

• Decision Date: 29 April 1920
• Docket Number: (No. 1109.)
• Citation: 221 S.W. 998
• Parties: J. M. RADFORD GROCERY CO. v. JAMISON.
• Court: Texas Court of Appeals

221 S.W. 998

J. M. RADFORD GROCERY CO. v. JAMISON.

(No. 1109.)

Court of Civil Appeals of Texas. El Paso.

April 29, 1920.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Action by C. S. Jamison against the J. M. Radford Grocery Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Davidson & Hickman, of Abilene, for appellant.

Grisham Bros., of Eastland, and W. J. Cunningham, of Abilene, for appellee.

WALTHALL, J. C. S.

Jamison brought this suit against the J. M. Radford Grocery Company, a corporation, to recover damages, actual and exemplary, on an alleged breach of contract to sell to him, on credit, $2,000 worth of groceries, and to extend to him additionally a line of credit for goods, wares, and merchandise in a like amount, and to sell to him a certain storehouse in the town of Ranger and a Ford automobile truck, the price to be paid for the store building and truck being $700, for which sum he executed to appellant his promissory note, payable on demand, securing same by a mortgage on said house and truck.

Appellee alleged performance on his part of the terms of the contract, and a breach, in part, of the terms of the contract on the part of appellant. Appellee alleged that appellant delivered to him only a portion of the goods it had agreed to sell and deliver to him, and failed and refused to deliver to him the balance, and refused to extend to him the line of credit; that appellant by force, threats, and fraud took possession of said storehouse and truck, excluding appellee therefrom, and carried away certain of appellee's goods, injured his credit, etc.

Appellant answered by general demurrer, special exceptions, general denial, and special denial of the alleged contract, except the sale to appellee of the store building and truck and the execution of the note and mortgage on the building and truck to secure the note; "denies that it ever at any time entered into a contract or agreement with plaintiff to furnish him a line of credit to the amount of $2,000, or in any other amount whatever, and specially denies that any of its agents, representatives, or employés ever made any such agreement with plaintiff," and that if any agent or representative or employé ever attempted to make such contract such act was wholly unauthorized by appellant and outside the scope, or apparent scope, of the authority of such agent; that in taking possession of the store building, truck, and property mentioned it acted in strict compliance with the terms of said chattel mortgage. Appellant by cross-action pleaded that at the request of appellee it sold and delivered to him certain goods, wares, and merchandise for which appellee agreed to pay appellant at the time of their purchase and delivery, which appellee had failed to do, and for which appellant prayed judgment.

By supplemental petition appellee demurred generally to appellant's answer, made general denial, and pleaded that appellant is estopped from denying the authority of its agent to make the contract in question; that the contract after made was ratified by appellant and acted upon by appellee without knowledge of any lack of authority of the agent.

The case was presented to the jury upon the following issues, to which the jury made the findings indicated:

"No. 1. Did defendant agree to furnish $2,000 stock of goods to plaintiff with which to begin business, and to extend a $2,000 line of credit for his store at Ranger? Answer Yes or No." Answer: Yes.

In the event the answer was Yes, then:

"No. 2. Did defendant furnish plaintiff $2,000 worth of goods to begin with? Answer Yes or No." Answer: No.

"No. 3. Did defendant extend plaintiff a $2,000 line of credit after his business was opened? Answer Yes or No." Answer: No.

In the event No. 1 was answered Yes, and Nos. 2 and 3 answered No, then:

"No. 4. Was plaintiff damaged by reason of the failure of defendant, if any, to furnish the full $2,000 opening stock, and to extend thereafter to plaintiff a $2,000 line of credit? Answer Yes or No." Answer: Yes.

If No. 4 is answered Yes, then:

"No. 5. How much was plaintiff damaged by such failure of defendant, if any?" Answer: $1,000.

"No. 6. Did defendant have permission to seize and carry away the car (truck) sold plaintiff, and also to take certain goods away in said car? Answer Yes or No." Answer: No.

"No. 7. Did defendant have plaintiff's permission to take over said stock of goods and close up plaintiff's store? Answer Yes or No." Answer: No.

"No. 8. Did the acts of defendant in taking the car and goods and closing the doors of plaintiff's business above inquired about, if defendant did do so, damage plaintiff in his credit in the matter of carrying on his grocery business at Ranger? Answer Yes or No." Answer: Yes.

If No. 8 is answered Yes, then:

"No. 9. How much has plaintiff been damaged by reason of the taking of said car and goods, by plaintiff (evidently meaning defendant) and closing the doors of plaintiff's business by defendant, if any?" Answer: $1,500.

On the jury's findings the court entered judgment for appellee in the sum of $2,500, less the amount of $797, proven by defendant and admitted by plaintiff on plaintiff's counterclaim.

Opinion.

The first and second assignments are presented to the action of the court in overruling appellant's special exceptions to the petition in its allegations as to the contract entered into for the line of credit appellant was to extend to appellee. The exceptions presented are: That if such an agreement was made it was illegal and void; that said allegations are too vague and indefinite to constitute a cause of action, and that same fails to show a valuable and valid consideration therefor; that the damages alleged to have been sustained are too remote, uncertain, speculative, and indefinite. The pleading is too lengthy to set it out in full, but we copy the portion in which the contract as to the line of credit is stated:

"Plaintiff is by trade a retail merchant and on or about the 27th day of September, 1918, he was approached by defendant, who was then and is yet a wholesale grocery merchant in the town of Cisco, Tex., and then and there, in the town of Ranger, in Eastland county, Tex., entered into a contract with said defendant by the terms of which plaintiff agreed to purchase his groceries from the defendant, and the defendant contracted and bound itself to sell to the plaintiff on credit $2,000 worth of groceries for plaintiff's said business, and to extend to the plaintiff a line of credit for goods, wares and merchandise in said sum."

To allege that appellant agreed and bound itself to extend to plaintiff a line of credit for goods, wares, and merchandise, we think, is not a sufficient statement of a contract. A declaration in an action on a contract must aver every material part of it. So much of the contract as is essential to the cause of action should be specially set out. The material facts of a contract cannot be presumed; they must be alleged, in order to show a breach or nonperformance. A declaration in an action on a contract which does not state the time at which the defendant should have performed is bad on demurrer. Where no time for performance is specified in a contract, it should be averred that it was to be performed on request, or within a reasonable time, and that such request was made or that a reasonable time has elapsed. If appellant has obligated itself to extend to appellee a line of credit for goods, wares, and merchandise to the extent in value of $2,000, many facts collateral to the main fact arise in its performance as to the time, place, and method of performance: When and where and in what quantities were deliveries of the goods to be made? For how long a time was the line...