Mutual Film Corp. v. Morris & Daniel

• Decision Date: 15 January 1916
• Docket Number: (No. 8303.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 1060
• Parties: MUTUAL FILM CORP. v. MORRIS & DANIEL.
• Court: Texas Court of Appeals

184 S.W. 1060

MUTUAL FILM CORP. v. MORRIS & DANIEL.

(No. 8303.)^*

Court of Civil Appeals of Texas. Ft. Worth.

January 15, 1916.

On Motion for Rehearing, February 26, 1916.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Action by Morris & Daniel against the Mutual Film Corporation. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Smith, Robertson & Robertson, of Dallas, for appellant. Eugene De Bogory, of Abilene and W. L. Morris, of Albany, for appellees.

CONNER, C. J.

This appeal is from a judgment for $1,750 in appellees' favor as damages for breach of an alleged contract made with the appellant corporation.

Pretermitting as immaterial a discussion of a number of assignments presented, we go at once to the vital question in the case. The appellees alleged that they were engaged in exhibiting moving picture films in the city of Abilene; that upon the date stated the appellant corporation agreed to furnish appellees with moving picture films delivered in Abilene weekly at a rental of $28.50 per week, "so long as the plaintiffs continued in the picture show business in Abilene." It was alleged that the appellees agreed to take and use the films at the price and upon the terms stated "as long as the plaintiffs continued in the picture show business in Abilene." The evidence possibly supports the finding of the jury to the effect that the appellant corporation agreed to furnish films as alleged, but, as presented, we find the evidence wholly wanting to support the allegation of an agreement on appellees' part to take the films at the price and for the period specified. The contract, therefore, is so plainly unilateral, and terminable at the will of either party that it seems only necessary to cite some of the authorities. See H. & T. C. Ry. Co. v. Mitchell, 38 Tex. 86; Kraft Holmes & Co. v. Sims, 1 White & W. Civ. Cas. Ct. App. § 404; Richardson v. Hardwicke, 106 U. S. 252, 1 Sup. Ct. 213, 27 L. Ed. 145; Dorsey v. Packwood, 12 How (U. S.) 126, 13 L. Ed. 921; Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979; Tyler Ice Co. v. Coupland, 44 Tex. Civ. App. 383, 99 S. W. 133; Campbell v. Lambert, 36 La. Ann. 35, 51 Am. Rep. 1; E. L. & R. R. R. R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719, 84 C. C. A. 145; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Fowler Utilities Co. v. Gray, 167 Ind. 1, 79 N. E. 897, 7 L. R. A. (N. S.) 726, 120 Am. St. Rep. 344; Bradshaw v. Terrell Foundry & Mach. Co., 104 S. W. 509.

The contract, under the circumstances proven being terminable at the will of either party, was unenforceable, and appellant's failure to continue furnishing films, as charged in the appellees' petition, furnishes no legal ground for redress. We, accordingly, sustain appellant's assignments attacking the action of the court in submitting the issue, the verdict of the jury thereon, and the judgment in appellees' favor.

The conclusions so announced require of us a reversal of the judgment and a rendition of the judgment in appellant's favor, and it is accordingly so ordered.

On Motion for Rehearing.

Appellees urgently insist that we erred in reversing the judgment herein because of a want of evidence, for the reason that in appellant's answer there was no special denial of plaintiffs' allegation that appellees "agreed" to take and use the films, which were the subject-matter of the controversy, "at the price and upon the terms stated as long as the plaintiffs continue in the picture show business in Abilene." And they cite section 4 of the act of the Thirty-Third Legislature, approved March 3, 1913, amending article 1902 of the Revised Statutes. (Vernon's Sayles' Ann. Civ. St. 1914, art. 1902). The amended article reads, in part:

"The defendant in his answer shall plead to each fact alleged in the plaintiff's petition, and either admit or deny the same, or deny that he has any knowledge or information thereof sufficient to form a belief. And any fact not denied by the defendant or which he does not deny that he has any knowledge or information thereof sufficient to form a belief shall be taken as confessed," etc.

It is true that in the defendant's answer there was no specific denial of the allegation quoted. But since the trial below the act quoted has been repealed by act approved March 22, 1915. See General Laws 1915, p. 155. The statute above quoted, being remedial in its nature, is, in consequence of the repeal, therefore no longer available even in this court. See Etter v. Missouri Pac. Ry. Co., 2 Willson, Civ. Cas. Ct. App. § 60, and authorities therein cited. See, also, 36 Cyc. p. 1228, § G. Moreover, it has been the holding of this court, as well as of other courts, that in order to entitle a party to avail himself of the right conferred by section 4 of the act of 1913, because of a want of a verified denial of a material allegation, it is necessary that the court's attention be called to the fact, and request be made that the allegation be taken as "confessed," as provided in the section quoted. Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S. W. 1036; Railroad Co. v. Dye, 70 Fed. 24, 16 C. C. A. 604; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217. The record fails to show that appellees excepted to any part of appellant's answer for a want of verification, or that request was made of the trial court that any part of the appellees' petition be taken as confessed. We are of the opinion, therefore, that appellees' first ground of error in the motion for rehearing must be overruled.

It is further insisted that we erred in rendering the judgment rather than in reversing the cause for another trial. Appellees, in support of this ground of the motion, invoke article 1626 of Vernon's Sayles' Texas Civil Statutes, which reads that:

"When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or the damages to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below."

We were not unmindful of this provision of our statutes in announcing our original conclusion. But the record shows that the trial proceeded upon the appellees' fourth amended original petition, their first supplemental petition, and a trial amendment, and upon defendant's first amended original answer and its first and second supplemental answers. And the necessity on appellees' part to, among other things, prove the very material allegation that they had agreed to take and pay for the films promised by the appellant corporation could not very well have escaped the attention of the parties and of the court, as it seems to us. Upon this point it further appears that the appellees offered the following testimony, and none other that materially affects the issue, viz.:

Charlie Morris, one of the appellees, after having testified that the appellees had leased the film business in Abilene in October, 1913, and after having testified that he had communicated with Charles Touchon of the appellant film company, requesting a continuance of the service by shipping films to the appellees, to which Touchon consented, and after having further testified that there was "not anything said over the telephone then about how long we were to get the service; there was no agreement over the telephone about how long we were to get the service," further testified:

"I did not talk with the Mutual people any more until in January, 1914, in regard to a contract. I then talked with Touchon, at the Mutual Film Exchange in Dallas. When I was in Dallas in January, I told Touchon that I had heard that there was a party in Abilene trying to get our service, and that is what I came to Dallas for, and to see about service for a new theater we had opened here. `Well,' he says, `there is nobody trying to get your service, Morris,' and he says, `They could not get it if they wanted it.' He says: `Our business relations have been very pleasant, and we don't do that kind of business. We don't take service away from a man as long as he pays for it.' I asked him about service for the Gem Theater, and he did not know where I could get service. I asked him about the Universal service. He said it was no good. We then had a conversation in the back part or the center part of the building in regard to some features we were looking over — some new advertising matter; big post cards and big photographs — and I booked some features with him. By `booking' I mean contracting for it. A feature film is a special film on any special feature that is not in the regular service. It is called a feature,...