New Amsterdam Casualty Co. v. Harrington

• Decision Date: 25 June 1927
• Docket Number: (No. 11898.)
• Citation: 297 S.W. 307
• Parties: NEW AMSTERDAM CASUALTY CO. v. HARRINGTON.
• Court: Texas Court of Appeals

Page 307

297 S.W. 307

NEW AMSTERDAM CASUALTY CO. v. HARRINGTON.

(No. 11898.)

Court of Civil Appeals of Texas. Fort Worth.

June 25, 1927.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by Charles F. Harrington against the New Amsterdam Casualty Company, in which the defendant filed a petition for an injunction. From an order denying the writ, the defendant appeals. Affirmed.

See, also, 283 S. W. 261, 290 S. W. 726.

Taylor, Muse & Taylor, of Wichita Falls, for appellant.

W. L. Scott, of Olney, and Davenport & Crain, of Wichita Falls, for appellee.

CONNER, C. J.

This appeal is from an order of Hon. P. A. Martin, District Judge, denying an application of the appellant, New Amsterdam Casualty Company, for a writ of injunction.

Appellant's petition for the writ alleges:

"That on or about the middle of March or April, 1927, defendant (appellant) made a full and complete settlement with the plaintiff, which settlement was made at the instance of the plaintiff and his wife, Grace K. Harrington, under the terms of which defendant paid over to the plaintiff the sum of $2,200, and took from him a receipt therefor.

"That said settlement was made after the Supreme Court had reversed a former judgment rendered by the district court of Wichita county, Tex., in favor of plaintiff, and held, in substance, that upon the cause pleaded by plaintiff, as applied to the admitted facts in the case, there was no liability on the part of defendant to plaintiff."

It was further alleged in substance that the settlement referred to was made upon the solicitation of the plaintiff, Harrington, and with which plaintiff and his wife expressed gratitude. It was further alleged that:

"Defendant shows that it now appears that plaintiff is attempting to repudiate said settlement made under the circumstances aforesaid; that in so doing he either acted in bad faith when he presented said application for settlement to defendant and did so with the intent to defraud defendant, or he has since been persuaded to act in bad faith and with the intent to defraud."

The foregoing allegations are followed in separate clauses by an offer to rescind the settlement mentioned upon plaintiff being required to pay into the registry of the court for the use and benefit of the defendant, the said sum of $2,200, in which "event defendant will cancel out and hold for naught said agreement for settlement made as above set out." It is further alleged that:

"In event plaintiff should refuse to return said amount of $2,200 paid by defendant to him as aforesaid, and shall further insist on the further prosecution of this cause against defendant, it further prays:

"(1) That a receiver shall here and now be appointed by the court with authority and instruction to take possession of said sum of $2,200 so paid by defendant to the plaintiff, and that plaintiff shall be ordered and required to pay over said sum of money to the said receiver.

"(2) That a writ of injunction shall issue herein against plaintiff, enjoining and restraining him from the further prosecution of this cause, and from asserting any claim of any sort against defendant on account of the matters and things set out in his petition herein until he shall return to defendant or pay over to a receiver to be appointed by this court said sum of $2,200 so paid by defendant to him as above set out.

"(3) That defendant shall have such other and further relief as the facts, upon the hearing of this application, shall require in law and in equity."

Upon the petition so presented, the judge made the following indorsement:

"The above and foregoing petition being this day presented to me, and being by me fully considered, the writ of injunction prayed for is refused.

                                        P. A. Martin, Judge."
                

It is from this order the appeal has been prosecuted, as before stated.

It is evident that appellant's offer to rescind was conditional, and not made effective either by an acceptance on the part of the plaintiff in the suit, Harrington, or by the appointment of a receiver with orders to take possession of the money and deposit it in the registry of the court. And no complaint is now made because of the failure to appoint a receiver as prayed for. The complaint is that the court erred in refusing to issue the writ of injunction. No further reference therefore, to the offer of rescission or the failure of the court to appoint a receiver will be made.

The transcript makes it evident that the application for the writ of injunction was filed in a suit styled Charles F. Harrington v. New Amsterdam Casualty Company (No. 16838C), but the pleading of the plaintiff in that case is not presented in the transcript, and we are left without knowledge of the cause of action asserted by the plaintiff, or of the defense, if any, therein presented by the appellant company. It seems plain to us that the petition for injunction fails to present a cause requiring the issuance of the writ as prayed for. The plea of settlement and payment in accordance therewith as alleged was a complete transaction, and constitutes a good plea in bar of the prosecution of the suit of Harrington indicated by the transcript. No reason is alleged why this plea may not be presented and maintained by appellant in event plaintiff Harrington shall insist upon the further prosecution of his suit. The trial of the issue thus presented can be as well and as expeditiously determined then as in this proceeding. In other words, appellant shows that it has a legal remedy...