McCaskey Register Co. v. Mann

• Decision Date: 18 April 1923
• Docket Number: (No. 6588.)
• Citation: 273 S.W. 1113
• Parties: McCASKEY REGISTER CO. v. MANN et al.
• Court: Texas Court of Appeals

273 S.W. 1113

McCASKEY REGISTER CO. v. MANN et al.

(No. 6588.)

Court of Civil Appeals of Texas. Austin.

April 18, 1923.

Rehearing Denied May 17, 1923.

Appeal from McCulloch County Court; Evans J. Adkins, Judge.

Suit by the McCaskey Register Company against James T. Mann and others. Judgment for defendants on plea of abatement, and plaintiff appeals. Reversed and remanded.

J. E. Shropshire, of Brady, for appellant.

Newman & McCollum, of Brady, for appellees.

KEY, C. J.

Appellant's brief contains the following substantially correct statement of the nature and result of this suit:

"Appellant, a nonresident corporation, domiciled at Alliance, Ohio, brought this suit upon written contracts for the sale of goods to appellees. The contracts were in the form of orders for the goods, which were signed by J. T. Mann, for appellees, in the fall of 1919. The orders so signed by appellees were on printed forms furnished to its agents by appellant, and the said forms had printed across their center or middle of the front page, in large capital colored type, the following: `NO GOODS SOLD ON TRIAL.' The sales were made through local agents representing appellants, and said agents were domiciled in Texas, and were working for appellant in Texas, and the orders were taken in Brady, Tex., and sent by the agent to the home office of appellant at Alliance, Ohio. At the time of taking each order, a cash payment was made by appellees to the agent of appellant. The contract forms which were used in this transaction expressly provide that all are taken subject to approval by appellant, at its home office in Alliance, Ohio. These contracts were sent in and approved by appellant at Alliance, Ohio, and the goods were partly manufactured, and the rest collected for and shipped to appellees in obedience to the said written orders or contracts. Appellant filed this suit for a balance of $541 due for the goods received by appellees under the contracts, which contracts were fully set out in the petition. In reply to the petition of appellant, appellees admitted the execution of the contracts, but pleaded that the contracts were signed by mistake, stating that J. T. Mann who signed them (two of them) at different times, did not read them, but relied upon previous verbal negotiations and assurances, from the agent of appellant, to the effect that the goods were to be shipped upon trial, with the right to reject them if unsatisfactory. In reply to this answer, appellant, by supplemental plea, pleaded that it had no notice of any verbal understandings contradictory to the written contracts sued upon, that the agents had no authority to vary the written contracts by parol, and that appellant had, relying upon the written contracts, approved same, manufactured the goods for and shipped them to appellees; and that appellees were estopped from relying upon such a defense in this case. A jury was demanded, and the fee paid by appellant, and the case was regularly transferred to the jury docket, and called for trial, at which time the appellant announced ready for trial (it being plaintiff below), when appellees stated to the court that they wanted their plea in abatement passed upon before announcing on the merits. Thereupon the court heard the pleadings and the evidence submitted on appellees' plea in abatement (which was to the effect that appellant had no legal right to prosecute this suit because it had not qualified and procured a permit to do business in this state, under the statutes of the state of Texas). After hearing the pleadings and the said evidence, the court sustained the plea in abatement, without submitting any issues of fact to the jury, and ordered the cause dismissed, and from which order this appeal is taken."

The trial judge filed the following findings of fact:

"(1) The pleadings in this case are here referred to and made part hereof for allegations contained therein.

"(2) At all times mentioned in the pleadings, and at all times in any way connected with the cause of action sued upon in this case, the plaintiff, the McCaskey Register Company, was a foreign corporation, created and existing under the laws of the state of Ohio, and it has never complied with chapter 26, title 25, Revised Statutes of the state of Texas, by filing with the secretary of state a duly certified copy of its articles of incorporation, and procuring from the secretary of state a permit to transact business in this state.

"(3) Long previous thereto, and during the entire time of all negotiations and transactions between plaintiff and defendant about the matter upon which this suit is based, the plaintiff had a general office in Dallas, Tex., at 412 Sumpter building, and had a general or district agent located there, and with headquarters there, and during all of said time, through its agents and representatives, it solicited business in the state of Texas. During all of the time the negotiations and transactions in the matter in controversy were pending, the plaintiff had 10 salesmen working in the state of Texas, each of whom had headquarters at 412 Sumpter building, Dallas, Tex., but the addresses of said salesmen being, 4 in Dallas, Tex., 2 in San Antonio, Tex., 1 in Amarillo, Tex., 1 in Paris, Tex., 2 in El Paso, Tex., and 1 in Austin, Tex. The plaintiff had been doing and carrying on similar business and transactions to the transaction sued on in Texas since 1905. Its agent or salesman, J. H. Semmes, who negotiated the transaction on which this suit is based, was its general or district manager in Texas, with headquarters at Dallas, Tex., in September, 1921, and then had under him 27 employees and agents. At the time he negotiated with defendants in connection with the transaction sued upon, he was one of the 10 salesmen in Texas for plaintiff with post office address and headquarters at Sumpter building, Dallas, Tex., and at that time E. T. Ireland, whose headquarters was said Sumpter building, Dallas, Tex., was district manager for plaintiff in Texas, and said J. H. Semmes operated under said Ireland.

"(4) At the time of the negotiations between plaintiff and the defendants, the plaintiff was transacting business in this state, and had established a general and special office in this state, and said office was located at 412 Sumpter building, Dallas, Tex., and was soliciting business in this state, and all the negotiations and transactions had between defendants and plaintiff or its representatives about the matter in...