Martinez v. Oliver

• Decision Date: 27 January 1923
• Docket Number: (No. 8498.)
• Citation: 247 S.W. 598
• Parties: MARTINEZ v. OLIVER et al.
• Court: Texas Court of Appeals

247 S.W. 598

MARTINEZ v. OLIVER et al.

(No. 8498.)

Court of Civil Appeals of Texas. Dallas.

January 27, 1923.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by P. P. Martinez against J. K. Oliver, Marsh Elliston, and others. Judgment for defendants Elliston and others after suit was dismissed as to defendant Oliver because of his insolvency, and plaintiff appeals. Affirmed.

Alex W. Spence and Spence, Haven & Smithdeal, all of Dallas, for appellant.

Smith, Robertson & Robertson, of Dallas, for appellees.

JONES, C. J.

Appellant, P. P. Martinez, plaintiff in the case below, brought this suit against J. K. Oliver, Marsh Elliston, Chas. A. Tosch, J. E. Moore, and W. H. Turner, who were defendants in the suit below. A general demurrer was sustained to appellant's petition, and, as he declined to amend, his suit was dismissed. Error is assigned on the action of the court in sustaining the general demurrer.

As shown by appellant's petition, he conducted a business in the city of Dallas as a wholesale and retail dealer in tobacco and cigars, and Oliver was a traveling salesman. On the 17th of July, 1916, appellant and J. K. Oliver entered into a written contract, by the terms of which Oliver was employed as salesman in certain described territory for appellant's goods; the contract of employment taking effect August 1, 1916. The territory allotted to Oliver, as described in the written contract, included the city of Fort Worth. It was alleged that this inclusion of the city of Fort Worth was a clerical error, and arose from the fact that Oliver was to have the territory that had theretofore been traveled by one A. B. Claytor, who had been a salesman in the employ of appellant; that during the time Claytor was working his territory, and before the employment of Oliver, Claytor had surrendered the city of Fort Worth from his territory to one L. H. Miller, and that Miller, at the time of the contract in question, was selling appellant's goods in the city of Fort Worth, and had the exclusive right to do so. That appellant's stenographer was given the form of contract in use by appellant with his traveling salesmen, given a description of Claytor's territory and directed to draw the Oliver contract, but instructed to exclude the city of Fort Worth from said territory in Oliver's contract; that the stenographer failed to comply with the instructions, and copied the description of Claytor's territory from contract made with Claytor when he entered his employment, and did not exclude therefrom the city of Fort Worth. Very full allegations are made as to clerical error, mutual mistake, and Oliver's knowledge that Fort Worth was not included in the territory allotted him in his contract.

At the time Oliver entered into the contract, he was required to execute a bond to secure appellant against loss by reason of money advances and goods intrusted to him, under the terms of his contract. This bond bears the same date of the contract, but was executed after the draft of the written contract had been made and signed by appellant and Oliver. Appellees in this case are the sureties on this bond. The bond is as follows:

"State of Texas, County of Dallas.

"Know all men by these presents that ____, as sureties, acknowledge ourselves obligated and firmly bound to pay to P. P. Martinez, at Dallas, in Dallas county, Texas, the sum of three thousand (3,000.00) dollars; conditioned however, that if J. K. Oliver shall well and truly perform all obligations incumbered upon him under that certain contract, dated this day, by and between P. P. Martinez, as party of the first part, and J. K. Oliver, as party of the second part, and shall well and truly pay to the said P. P. Martinez any and all moneys which become owing to said P. P. Martinez by J. K. Oliver, under the terms of said contract, which is hereby referred to and made a part hereof, this obligation shall be null and void, otherwise to remain in full force and effect.

"Witness our signatures this 17th day of July, 1916."

Oliver continued in the employment of appellant until some time in August, 1917, when he left his employment. At this time he owed appellant under the terms of his contract the sum of $1,932.81. The purposes of this suit were to reform the written draft of the contract in respect to the matters above indicated so as to make it conform to the actual contract made between the parties and to recover, on this corrected contract against appellees the full amount of the bond. On allegations of insolvency, appellant dismissed his suit before judgment as to Oliver, so that the suit, at the time judgment was entered on the ruling of the court in sustaining the general demurrer, was against appellees as sureties on the bond.

It is contended by appellees that they could be held...