McCall Co. v. Segal
| Decision Date | 24 March 1910 |
| Citation | 126 S.W. 913 |
| Parties | McCALL CO. v. SEGAL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Marion County; P. A. Turner, Judge.
Action by the McCall Company against J. J. Segal. Judgment for defendant, and plaintiff appeals. Reversed and remanded for another trial.
The appellant sued for debt for patterns and publications sold and delivered to appellee under a written contract, and for damages stipulated for breach of the contract. The contract was to remain in force for three years, and provided "if either of us shall intentionally break this contract, or shall refuse or fail promptly to perform the same after two weeks notice in writing given by the other, then the other of us shall have the right to exercise the option of being released from all future obligations under it, and to receive as liquidated damages, and not as a penalty, a sum equal to the agreed charge for fashion sheets during the entire term of this contract." The contract also provided, "when this contract is closed as herein provided, patterns unopened and not defaced and in good salable condition purchased of you under this contract order may be returned at prices stated above in payment for said standing credit." By the terms of the contract the sum of $200 was to be carried from the date of the contract by appellant for appellee as a sum due in the first instance on stock shipment by appellant to appellee, and is the "standing credit" agreed to by the parties. Appellant was also to ship each month to appellee new monthly patterns at prices specified, payable on the 5th day of the month succeeding shipment. Claiming that the appellant had repeatedly failed and refused to ship, after notice, the "new monthly patterns," as provided in the contract, the appellee elected to exercise the option of renouncing the contract; and undertook, as payment for the amount previously due by him to appellant, to ship back all the patterns he had on hand. In accordance with the verdict of a jury judgment was entered for appellee.
W. T. Armistead and J. H. Benefield, for appellant. R. R. Taylor, for appellee.
LEVY, J. (after stating the facts as above).
A motion to dismiss the appeal was made because the surety on the bond for cost of appellant was surety on the appeal bond. A surety on a bond for cost merely is not incompetent as a surety on an appeal bond, because such surety does not become a party to the action. Sampson v. Solinsky, 75 Tex. 663, 13 S. W. 67. The appeal bond, therefore, not being void on the ground asserted, this court acquired jurisdiction of the case.
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Cook v. Northern Pacific Railway Company
... ... Ann. Cas. 61; Neuberger v. Robbins, 37 Utah 197, 106 ... P. 933; Thompson v. St. Charles County, 227 Mo. 220, ... 126 S.W. 1044; McCall Co. v. Segal, Tex. Civ. App. , ... 126 S.W. 913; Re Warner, 158 Cal. 441, 111 P. 352; ... Feuchtwanger v. Manitowoc Malting Co. 109 C. C. A ... ...
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McCall Co. v. J. D. Stiff Dry Goods Co.
...holding of this court in Eclipse Paint & Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S. W. 532. See, also, McCall Co. v. Segal, 126 S. W. 913; Malakoff Gin Co. v. Riddlesperger, 133 S. W. 519; Moroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088; Wheatley v. Kolla......
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Segal v. McCall Co.
...a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which certifies questions. Questions answered. See, also, 126 S. W. 913. R. R. Taylor, of Jefferson, for appellant. Armistead & Benefield, of Jefferson, for YANTIS, J. The case is presented on certified questions fr......