Order of Aztecs v. Noble

• Decision Date: 27 January 1915
• Docket Number: (No. 5435.)
• Citation: 174 S.W. 623
• Parties: ORDER OF AZTECS v. NOBLE.
• Court: Texas Court of Appeals

174 S.W. 623

ORDER OF AZTECS v. NOBLE.

(No. 5435.)

Court of Civil Appeals of Texas. Austin.

January 27, 1915.

Rehearing Denied March 3, 1915.

Appeal from Milam County Court; John Watson, Judge.

Action by W. S. Noble against the Order of Aztecs. Judgment by default for plaintiff, and from the overruling of its motion to set aside the judgment, defendant appeals. Affirmed.

Ernest A. Landman, of Athens, and Theodore Mack, of Ft. Worth, for appellant. Wallace & Moore, of Cameron, for appellee.

RICE, J.

This suit was brought by appellee against appellant, alleging that on the 9th of September, 1913, he had been employed by it to solicit insurance for it, which contract expired on January 1, 1914, and by which it contracted to pay him 60 per cent. of the first 12 monthly assessments of all members secured. He further alleged that in pursuance of said contract of employment he began working for appellant, and continued to do so until about the 1st of November, during which period he devoted his entire time to such employment, expended large sums in advertising said order, and incurred other necessary expense, amounting in the aggregate to $60; that as a result of said effort he secured members who took out policies therein, naming them, the commissions for which amounted in the aggregate to the sum of $213.48. He further alleged that by reason of said advertisement and the work that he had done for appellant, in addition to such business obtained, he had reasonable expectation of acquiring other business during the term of his contract, and that the amount of such new business would aggregate the sum of $250, but that appellant, on the 1st of November thereafter, without cause, terminated appellee's contract without his consent, thereby breaching the same, whereby he was damaged in the sum of the reasonable commissions that he would have earned before the expiration of said contract, to wit, $250, and prayed for judgment in his total damage in the sum of $523.48.

Although duly cited to appear and answer, appellant failed to do so, and judgment was, on the 13th of April, 1914, taken by default against it for the sum of $273.48, with interest and costs of suit. Thereafter, on the 19th of April, 1914, appellant filed its first motion to set aside said judgment, which was overruled, and on the 24th of April filed its second motion for new trial, which was likewise overruled, and from which judgment it prosecutes this appeal.

It is urged by the first assignment that the judgment was rendered without proof of the matters alleged in plaintiff's petition. The judgment, however, recites the contrary, and there is nothing in the record to support appellant's contention in this respect, for which reason this assignment is overruled.

The second assignment challenges the sufficiency of the petition to support the judgment. We think the petition is good as against a general demurrer. It clearly states a cause of action. This assignment is therefore overruled.

The petition in this case was duly signed and sworn to by appellee, but the jurat of the officer administering the oath states that this was done on the ____ day of ____, 1914. Appellant assigns this as error. By the act of the Thirty-Third Legislature (General Laws, p. 256 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 1827-1829b, 1902]) plaintiff is required to verify his pleadings. This we think in the present case was in fact done, as appears from the certificate of the officer. Sayles' Civil Statutes 1911, art. 12, tit. 2, states that "all affidavits shall be in writing, and signed by the party making same." This affidavit conforms thereto. It is not necessary that an affidavit should be dated. 2 Cyc. p. 22, D; Freas v. Jones, 15 N. J. Law, 20; Bell...