L. D. Powell Co. v. Sturgeon

• Citation: 299 S.W. 274
• Decision Date: 13 October 1927
• Docket Number: (No. 3436.)
• Parties: L. D. POWELL CO. v. STURGEON.
• Court: Court of Appeals of Texas

299 S.W. 274

L. D. POWELL CO. v. STURGEON.

(No. 3436.)

Court of Civil Appeals of Texas. Texarkana.

October 13, 1927.

Error from Lamar County Court; W. Dewey Lawrence, Judge.

Suit by the L. D. Powell Company against John F. Sturgeon. Judgment for defendant, and plaintiff brings error. Reversed and rendered.

This suit (commenced by plaintiff in error, a corporation, against defendant in error in a justice court) was to recover $102.70, claimed to be a balance due and unpaid of the purchase price of certain law books sold by plaintiff in error, the publisher thereof (acting by its agent), to defendant in error. The contract was evidenced by defendant in error's written order for the books, which, by its terms, became binding on the parties when accepted and approved by plaintiff in error. In his answer defendant in error alleged that he was induced to enter into the contract by his reliance on specified representations (not a part of the contract as written), which, he charged, were false, and which, he charged further, were fraudulently made by said agent. In his said answer defendant in error alleged, further, that the consideration for his undertaking under the contract had "wholly failed," and he prayed not only that plaintiff in error recover nothing against him, but that he have judgment against it for $200 he had paid it on account of the books. The contract as written contained a stipulation as follows:

"No representations or agreements have been made on behalf of the publishers not contained herein,"

— which plaintiff in error invoked as a reason why defendant in error should not be heard to claim anything on account of false representations of the agent, if any, orally made, and not included in the writing evidencing the contract. It appeared from the written contract that on April 12, 1921, defendant in error purchased two sets of books (and supplements thereto to be published) of plaintiff in error — the "Encyclopedia of Evidence," 14 volumes at $6.50 per volume, the "Standard Encyclopedia of Procedure," 26 volumes at $7.59 per volume, and the supplements at $7.50 per volume, and agreed to pay therefor as follows: "$8 cash and $8 per month until all volumes delivered have been paid for, remaining volumes, if any, to be paid for on delivery." It appeared from other evidence heard at the trial that defendant in error began making the monthly payments as stipulated for in the contract as written on July 25, 1921, and continued making such payments until November 5, 1925.

Special issues were submitted to the jury, and they found as follows: (1) That the contract in question was procured through fraud of plaintiff in error's agent; (2) that plaintiff in error violated a condition or conditions (not specified) imposed upon it by the terms of the contract; (3) that defendant in error was damaged by reason of plaintiff in error's breach of the contract; (4) that the amount of defendant in error's damage was $200. On said findings the court rendered judgment that plaintiff in error take nothing by its suit, and against it in defendant in error's favor for $200.

John S. Stone, of Paris, for plaintiff in error.

R. E. Eubank, of Paris, for defendant in error.

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

It appeared without dispute in the testimony heard at the trial that defendant in error purchased the books, and agreed to pay for them as alleged by plaintiff in error, and, further, that he failed to pay $102.70 of the price agreed upon. That being true, the judgment...