Model Baking Co. v. Dittman

• Decision Date: 05 November 1924
• Docket Number: (No. 7212.)
• Citation: 266 S.W. 802
• Parties: MODEL BAKING CO. v. DITTMAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

266 S.W. 802

MODEL BAKING CO. v. DITTMAN.^*

(No. 7212.)

Court of Civil Appeals of Texas. San Antonio.

November 5, 1924.

Rehearing Denied December 10, 1924.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by the Model Baking Company against Carl Dittman. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Terrell, Davis, Huff & McMillan, of San Antonio, for appellant.

Denman, Franklin & McGown, of San Antonio, for appellee.

SMITH, J.

It was alleged in the petition of the plaintiff below that, at the inception of the transaction in controversy, Charles P. and Paul E. Steffler were engaged in the bakery business, as partners, under the trade name of Model Baking Company. It was further alleged, however, that the business assets of the concern were owned by Charles Steffler, and were under his exclusive management and control, although the net profits of the business were distributed one-fourth to Paul, and the remaining three-fourths to Charles.

The firm, as such, entered into a written contract with Carl Dittman, a bake oven builder, who, for a cash consideration of $1,200, obligated himself to construct an oven for the firm at their plant in San Antonio, the latter to furnish the materials and Dittman to furnish the labor. Dittman proceeded under the contract and constructed the oven, which was accepted and the contract price paid over. The contract was silent as to its assignability but contained a stipulation that:

"Carl Dittman agrees to guarantee this oven for a period of five years against defect of any kind, and repair the same free of cost to the Model Baking Company."

It was alleged by Steffler in his trial petition that a short time after the completion and acceptance of the oven the partnership was "dissolved," Paul Steffler withdrawing from the firm and assigning his interest in the business, "including the cause of action here now asserted," to Charles. The latter continued to operate the business under the original trade-name and subsequently brought this suit, alleging that the oven was not properly constructed, had proven defective, and by reason thereof had fallen to pieces; that Dittman, although given notice of such defects and disintegration, had failed and refused to repair the oven as he had contracted to do. It was further alleged that the oven was constructed in accordance with specifications peculiarly Dittman's, and could not be repaired or restored by other concerns, which, upon Dittman's refusal to repair, necessitated the dismantlement of the old and the construction of an entirely new oven. The suit was for damages alleged to have been sustained by Steffler on account of the breach of the contract and of the warranties therein. The court sustained a general demurrer and special exceptions to Steffler's petition, upon the ground that the contract was of a personal nature, involving personal trust and confidence, and was therefore not assignable; and upon the further ground that Dittman's obligation in the contract was in the nature of a special guaranty, intended only for the two Stefflers, as partners, and when one partner assigned the contract to the other, Dittman was thereby released from his obligation. When these exceptions were sustained, Steffler declined to amend, and the court dismissed the suit. Steffler has appealed under his trade-name. Appellant has considerately confined his brief to three propositions of law, which may be grouped into one and so...