Janes v. Ferd Heim Brewing Co.

• Decision Date: 04 December 1897
• Citation: 44 S.W. 896
• Parties: JANES et al. v. FERD HEIM BREWING CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 896

JANES et al. v. FERD HEIM BREWING CO.¹

Court of Civil Appeals of Texas.

December 4, 1897.

Appeal from district court, Johnson county; James W. Brown, Special Judge.

Action by the Ferd Heim Brewing Company against W. T. Janes and others. Judgment for plaintiff against certain defendants, and W. T. Janes, J. R. Keating, and J. T. Williams appeal. Affirmed.

O. T. Plummer, for appellants. Henry, Brown & Patton, for appellee.

BOOKHOUT, J.

This suit was instituted by the Ferd Heim Brewing Company, a corporation doing business in the state of Missouri, in the district court of Johnson county, Tex., against W. T. Janes, Egbert Watters, W. T. Tutt, T. H. Griffin, J. R. Keating, J. T. Williams, Charles Williams, Lee Milner, William Jones, and J. S. Williams, upon an open account for beer sold by the Ferd Heim Brewing Company to W. T. Janes, and to recover a balance of $2,203.62. It was alleged that W. T. Janes as principal, and the other defendants as sureties, executed and delivered to plaintiff a certain bond, payable to plaintiff, in the sum of $2,000, conditioned, that, if the said W. T. Janes should well and truly pay any and all sums for which he might become indebted to plaintiff as the same became due, said obligation to become null and void; otherwise to remain in full force and effect. Said bond was given to secure plaintiff in the payment by Janes to plaintiff for certain beer to be shipped, sold, and delivered to Janes at Cleburne, Tex. That plaintiff had sold and delivered to said Janes a large amount of beer, and that the balance due it, after giving him credit for all moneys paid, was the sum of $2,203.62, for which amount judgment was prayed against Janes and the other defendants for $2,000, with interest, being the amount of said bond. The defendant Janes answered by general denial; and, secondly, denied some of the specific items of the account under oath; thirdly, he alleged that plaintiff ought not to be allowed to recover against him, because at the time he entered into said contract, and executed said bond to plaintiff, plaintiff was manufacturing and selling beer at wholesale to its customers; that the contract was entered into in Cleburne, Johnson county, Tex., and that in said contract, and by the terms of the same, plaintiff agreed and bound itself to defendant not to sell any beer manufactured by it to any person or persons in the city of Cleburne, or to be sold in the city of Cleburne, during the time defendant purchased said beer from plaintiff, and to give the defendant the exclusive right to sell said beer in the city of Cleburne free of all competition, during the time it purchased said beer from plaintiff, and that under said agreement defendant obligated himself to use his best endeavors in the interest of said company, and to handle no other beer than the beer manufactured by plaintiff, in the city of Cleburne, during said contract, and to pay plaintiff for said beer as the same was sold by him; that defendant purchased said beer from plaintiff mentioned in its petition under said contract, to be sold by defendant in the manner aforesaid in the city of Cleburne, and that plaintiff delivered said beer to defendant under said contract, in Johnson county, Tex., to be sold by him in the manner aforesaid, free of all competition. It was further alleged that the contract was made to prevent any and all competition in the sale of beer manufactured and sold by plaintiff to defendant, and that the contract was void. The defendants Keating and Williams answered by general exception and general denial; and further alleged that when they signed the bond one W. J. Brannon had already signed the same as a surety, he being a solvent party, and that they signed the bond as sureties on the faith of Brannon's being a surety thereon, and that after they signed it Brannon erased his name, without the knowledge or consent of these defendants, and that plaintiff accepted said bond knowing that Brannon's name had been erased therefrom; that plaintiff did not notify them that Brannon's name had been erased from the bond, and, had they known it, they would not have become sureties on the bond. They also adopted the answer of Janes, seting up the illegality of the contract under which the beer was delivered. T. H. Griffin answered by general denial; alleged his suretyship upon the bond, and that after the execution of said bond, in the month of May, 1894, he notified plaintiff that he would no longer stand on said bond, and instructed plaintiff to enforce collection on the bond at once; and that thereafter plaintiff and defendant Janes entered into a different contract, extending the time of payment, and changing the old contract, whereby he was released. He also set up the illegality of the contract, and adopted the answer of W. T. Janes in that respect. Egbert Watters answered by general denial; that he was surety on the bond, and that when he signed it the name of W. J. Brannon was signed thereto as a surety; that he signed the bond upon the faith of Brannon having signed the same as a surety, and that Brannon's name was afterwards erased without his knowledge or consent. Also he alleged a change in the contract, a settlement with W. T. Janes, and the making of a new contract between plaintiff and defendant Janes, whereby he was released. He also adopted the answer of W. T. Janes, setting up the illegality of the contract. The cause of action was dismissed as to William Jones and W. T. Tutt. The defendants Charles Williams, Lee Milner, and J. S. Williams failed to file any answer. The cause was tried, with the aid of a jury, and resulted in a verdict and judgment in favor of plaintiff against Charles Williams, Lee Milner, J. S. Williams, defendants, for $2,000; against defendants J. R. Keating and J. T. Williams for the sum of $1,610.65; and against the defendant W. T. Janes for the sum of $2,528.65; and in favor of Egbert Watters and T. H. Griffin against plaintiff. The defendants W. T. Janes, J. R. Keating, and J. T. Williams presented motions for new trial, which being overruled, they have prosecuted this appeal to this court.

Appellants assign the following as their first assignment of error: "The court erred in not allowing the defendant W. T. Janes to testify for himself and his co-defendants, as...