J. M. Radford Grocery Co. v. Jamison
| Decision Date | 05 February 1926 |
| Docket Number | (No. 77.) |
| Citation | 282 S.W. 278 |
| Parties | J. M. RADFORD GROCERY CO. v. JAMISON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Eastland County; Elzo Been, Judge.
Action by C. S. Jamison against the J. M. Radford Grocery Company, in which defendant filed a cross-action. Judgment for defendant on its cross-complaint, and judgment for plaintiff for actual and exemplary damages, and defendant appeals. Reversed and remanded.
Allen D. Dabney, of Eastland, and Davidson & Hickman, of Abilene, for appellant.
Grisham Brothers, of Eastland, for appellee.
This is the third appeal of this case. The opinion of the honorable Court of Civil Appeals upon first appeal will be found in 221 S. W. 998, and the opinion upon the second appeal in 260 S. W. 957. We refer to said opinions for a more comprehensive statement, and make the following additional statement of history of the case:
C. S. Jamison filed his third amended original petition setting up and seeking recovery on account of the alleged breach of contract in the taking of the house and truck and in addition agreement to sell plaintiff an initial stock of groceries of the value of $2,000 and keep said stock up to $2,000, alleging the execution of the chattel mortgage and note. He alleged an agreement with appellant that the note and initial stock of goods were to be paid out of the current profits. Appellee alleged that appellant delivered to him merchandise in the sum of $1,096.34, and thereafter refused to make further deliveries, and demanded payment of said note secured by a chattel mortgage on the house and truck; that appellant through its agents took possession of said truck and house and took merchandise out of the store of the value of $65.43, and locked up the house, nailing down the windows, etc., alleging that the appellant maliciously, wantonly and willfully breached said contract to appellee's actual damages in the sum of $5,000 and exemplary damages in the sum of $5,000.
The appellant filed his second amended answer, and demurrer generally and specially to appellee's petition, and further answered by general denial and specially pleading its authority for taking the house and truck under the terms of its chattel mortgage. The appellant further denied that it ever approved or ratified any alleged contract made by McAdams. The pleadings of both parties are so voluminous that we do not believe it necessary for the understanding and disposition of this appeal to make further statement, but statements will be made as are deemed pertinent in a discussion of the errors complained.
The cause was tried before a jury, resulting in appellant obtaining judgment on its cross-action in the sum of $1,113.32, and judgment in favor of appellee for $65.43 actual damages and $2,500 exemplary damages, as found by the jury. The appellant filed its motion for new trial, which was overruled, and the cause is now before this court again for review.
Error is predicated in the court refusing to sustain exception to appellee's petition, the appellant contending that on the 7th day of February, 1923, judgment was entered sustaining demurrers and exceptions to plaintiff's second amended original petition which related to the taking of the car and house, it being insisted that the judgment theretofore made at a former term of court sustaining demurrer was final, and res judicata. We do not believe that the said order was final. The court did sustain exceptions to that part of the petition and entered Judgment, but on appeal the cause was reversed, and, as we understand the rule, the reversal of the case would be a reversal as to the whole matter. 23 Cyc. 1130g; 23 Cyc. 1131c, subdivision I, same, page 1132. Houston Oil Co. of Texas v. Davis (Tex. Civ. App.) 181 S. W. 851; Mexico Central R. Co. v. Goodman (Tex. Civ. App.) 55 S. W. 372.
The jury found in appellant's favor that no such contract was made, and, if it could be conceded that the court was in error in overruling the exceptions, it would be harmless. The first, second,...
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...Bank v. Smith, Tex.Civ.App., 166 S.W. 666; Runnels Chevrolet Co. v. Clifton, Tex.Civ.App., 46 S.W.2d 426; J. M. Radford Grocery Co. v. Jamison, Tex.Civ.App., 282 S.W. 278. The appellant introduced in evidence the mortgage referred to and also introduced in evidence the assumption by the pla......
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