McDonald v. Debco Corp. of Tex.

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: McDonald v. Debco Corp. of Tex., 350 S.W.2d 221 (Tex. Ct. App. 1961)
• Decision Date: 22 September 1961
• Docket Number: No. 3651,3651
• Parties: Duane H. McDONALD, Appellant, v. DEBCO CORPORATION OF TEXAS, Appellee.

Page 221

350 S.W.2d 221

Duane H. McDONALD, Appellant, v. DEBCO CORPORATION OF TEXAS, Appellee.

No. 3651.

Court of Civil Appeals of Texas, Eastland.

Sept. 22, 1961.

Donald J. Metcalfe, Dallas, for appellant.

Jack K. Currey, Abilene, for appellee.

GRISSOM, Chief Justice.

This is an appeal by Duane H. McDonald from an order refusing to grant an injunction against Debco Corporation of Texas. McDonald sued said corporation for damages for breach of a contract. He alleged that in September, 1960, they had a verbal contract that defendant would deliver to him gasoline products having a certain octane rating; that immediately following commencement of deliveries it was agreed that said rating should be increased to .88; that defendant extended to McDonald a $20,000 open credit so that he might fulfill said agreement and McDonald executed a deed of trust upon real estate in Colorado to secure its payment; that, 'immediately following the initial deliveries' McDonald learned that the products delivered were of inferior quality and contained a noxious odor; that he complained to defendant's agents but was unable to obtain a price adjustment; that, on October 5, 1960, said $20,000 credit was exhausted and McDonald was placed on an open account basis and payments were agreed to be made on receipt of invoices for the products delivered; that, while operating on such basis, plaintiff paid defendant $55,000 for oil products, although he continued to receive an inferior quality; that in December, 1960, defendant was late with its deliveries, causing McDonald's underground storage tanks to become practically empty and heavy rains flooded the tanks out of the ground and plaintiff was required to close said stations until repairs could be made and the tanks filled; that in December, 1960, McDonald agreed that for each delivery made he would pay an equal amount of money on his past-due account, 'created by the delivery of inferior products', and he executed checks therefor to defendant which were not paid because the products were inferior. He prayed for $675,000 damages and sought to enjoin defendant from attempting to collect the checks and note or to foreclose its deed of trust lien. The defendant excepted to said petition and denied all of plaintiff's allegations. Thereafter, McDonald filed a supplemental petition in which he alleged that, subsequent to the filing of his petition, the defendant had filed a motion in a Colorado Court to have the public trustee sell the Colorado realty and that such a sale would prejudice his rights, because said property secured a 'purported' indebtedness which is a necessary part of plaintiff's case, and wound cause irreparable damage, and, unless enjoined, defendant would harass plaintiff by trying to collect said debts and foreclose said lien. Plaintiff's petition was verified. A restraining order was entered. Thereafter, Debco filed a motion to dissolve it and an answer to plaintiff's petition for a temporary injunction. The answer was verified. Defendant specially denied that the value of the Colorado property was in excess of $20,000, the amount of plaintiff's note; that its motion to sell the Colorado property was an attempt to dispose of same to the prejudice of plaintiff, or that a sale would prejudice plaintiff's rights in this case. It denied that said indebtedness is a necessary or integral part of plaintiff's cause of action, or that a sale would cause irreparable injury. Defendant denied that the products delivered were of inferior quality and alleged that plaintiff had an adequate remedy at law. Defendant alleged that plaintiff had not alleged and could not allege specific facts which showed plaintiff was entitled to an injunction, or that irreparable injury would result from a sale of said realty or from an attempt to collect said note and checks. Defendant alleged that no immediate or irreparable injury could be shown as the probable result of a sale of the Colorado realty under its deed of trust because the law of Colorado provides a redemption period of six months after such a sale. Defendant alleged that plaintiff had an adequate remedy at law, to-wit, his suit for damages; that, so far as said $20,000 note was concerned, plaintiff had by its execution obtained from defendant $20,000 worth or oil products, accepted delivery therof, sold same and appropriated the money to his own use and refused to pay said note; that, so far as the checks are concerned, plaintiff obtained deliveries of gasoline upon his representation that he would pay such amounts; that plaintiff accepted such products, sold same and appropriated the money to his own use, and refused to pay the checks issued in payment therefor. Wherefore, defendant prayed that the restraining order be dissolved and an injunction denied. Said motion was granted. From an order refusing a temporary injunction McDonald has appealed.

Appellant contends that such refusal constitutes an abuse of discretion as a matter of law.

There is neither a...