Pace Corp. v. Jackson
| Decision Date | 09 February 1955 |
| Docket Number | No. 10271,10271 |
| Citation | 275 S.W.2d 849 |
| Parties | PACE CORPORATION et al., Appellants, v. Allan JACKSON, Appellee. |
| Court | Texas Court of Appeals |
James v. Graves, Brewer, Matthews, Nowlin & Macfarlane, San Antonio, for appellants.
Spears & LeLaurin, James E. Barlow, G. Bert Smith, Jr., San Antonio, for appellee.
This is an appeal from a judgment of the court, based on jury findings, awarding appellee.$19,000 as damages for the breach of paragraph (E) of the contract and agreement entered into by the parties hereto for the sale and purchase of certain capital stock in Pace Corporation.
The contract and agreement provided for the purchase of certain shares of stock from appellee and the amount and manner of payment, and paragraph one is as follows:
'First: As part of the consideration for this transaction, Allan Jackson agrees and is bound not to re-engage in the handling of sales of cigarettes by the use of cigarette vending machines, in the County of Bexar, Texas, either as an individual, partner, or employee, or to own stock in any corporation engaging in such business in Bexar County, Texas, at any time for the period that Pace Corporation is indebted to him, and for two years thereafter.'
Paragraphs (D) and (E) are as follows:
'(E) As a part of the consideration for this transaction, Pace Corporation agrees to supply Allan Jackson for any business he may become interested in outside of Bexar County, with cigarettes on a cash basis, at cost, for a period not to exceed two years after Pace Corporation has paid its indebtedness to Allan Jackson, such cost being defined as invoice price less normal trade and cash discount, if any.'
The litigation was begun by the filing of a motion for Declaratory Judgment by appellants in which the court was asked to determine and declare the true meaning and interpretation to be given the contract, and allegations were made that a proper construction to be given the contract does not require the Pace Corporation to supply Jackson for any business outside of Bexar County with cigarettes, other than the sale of cigarettes by the use of vending machines in Bandera and Kerr Counties, Texas; that the term 'business' as used in the contract was expressed in the singular, and does not embrace any but a single business transaction, or in any event the wholesale distribution and sale of cigarettes; that it was the intention of the parties that the supply of cigarettes to be furnished Jackson was to be taken out of the company's usual stock on hand; that any other construction would render the contract lacking in mutuality, and no legal standard to determine the relative rights and obligations thereunder, etc.
The defendant, appellee, answered that the contract to supply him, 'for any business he may become interested in outside of Bexar County, with cigarettes, on a cash basis, at cost, etc.' was plain, clear and unambiguous; that it was never the intention of the parties that the term 'any business' limited any venture in which defendant might become engaged, outside of Bexar County, to any one business, or to a cigarette vending machine business; that the phrase 'any business * * * outside Bexar County' was inserted in the contract on the insistence of defendant with the approval of plaintiffs.
The defendant made specific denials to other allegations of plaintiff, as to cost, etc., and prayed that the plaintiff take nothing.
By way of cross action defendant sought damages for the failure of plaintiff to comply with the contract terms, etc.
The pleadings in this case are very voluminous, the transcript containing 131 pages and the statement of facts 360 pages, with many exhibits and it is impossible, without unduly lengthening this opinion to attempt to review the pleadings further. We shall consider the evidence later on.
The appeal is before this Court on 50 points assigned as error.
Points Nos. 1 and 2 are as follows:
'The error of the Court in not holding that the separable and divisible portions of the contract declared upon by Appellee as the basis for his cross-action is too indefinite, vague and uncertain to create any contractual obligation on Appellants to supply appellee with cigarettes.
Under these points appellants contend that the provisions of the agreement are so uncertain, indefinite and so lacking in mutuality as to be unenforceable.
Paragraphs (D) and (E) are set out herein and will not be restated.
We do not believe that these provisions are so uncertain and indefinite and so lacking in mutuality as to be unenforceable.
In this case appellee agreed to the sale of his stock in the Pace Corporation in return for the execution of the agreement and has delivered the stock, given up this partial ownership in the corporation and done all he agreed to do. The appellants contend that paragraph (E) is uncertain, etc. and does not mean that the Pace Corporation is bound to supply Jackson, for any business he may become interested in outside of Bexar County, with cigarettes on the basis set out.
The appellants have failed to comply with the agreement to provide appellee with cigarettes on the basis set out, for use by appellee in his business in Kerr and Bandera Counties.
Terms such as mutuality, uncertainty, and indefiniteness, etc. are construed in the light of the circumstances under which the agreement is made and such terms used, and have no definite and fixed meaning and are interpreted so as to deal equitably with the parties.
The right to purchase cigarettes by appellee was only a part of the consideration, and the primary consideration which appellants received was the transfer of the stock in the corporation. The contract had been completely executed by appellee at the time of the institution of this suit.
The appellants had informed appellee, prior to the filing of the motion for Declaratory Judgment, that appellants were not under obligation under the contract to furnish appellee with cigarettes under the contract, and were only required to provide cigarettes out of any excess which Pace Corporation might have on hand, and then only as to such quantity and brand on hand.
Appellee had placed a temporary standing order for 18 cases of cigarettes, which appellant had refused to fill.
The contract was before the court and jury and viewed from the respective positions of the parties, and the jury returned its verdict and judgment was entered based thereon, and we believe that from the evidence of the parties heard by the jury that it was justified in its answers, and is a reasonable construction of the contract, and the contract is not lacking in mutuality and was an executed contract and not executory in nature. 10 Tex.Jur., p. 160, Sec. 94, with authorities cited; United Appliance Corporation v. Boyd, Tex.Civ.App., 108 S.W.2d 760.
The mutuality for the promise on the part of Pace Corporation to provide appellee with cigarettes under the contract does not consist in the counter promise of Jackson to purchase any specific amount or all of his cigarettes from appellant, but the mutuality for such promise on the part of appellant was the transfer of Jackson's stock in the corporation.
In Farmers' State Bank v. Mincher, Com.App.1927, 290 S.W. 1090, 1091, the Court held:
Roberts v. Anthony, Tex.Civ.App., 185 S.W. 423.
We do not believe that paragraph (E) of the agreement is so uncertain and indefinite as to make it void.
Mr. Moffett, one of the appellants, testified that the price of the cigarettes was intended to be the invoice price less normal trade and cash discounts.
No time or times for the purchase and delivery of any cigarettes was provided for in the agreement. In such instances the law implies that the contract is to be performed within a reasonable time. 10 Tex.Jur., p. 413,...
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