Phelps v. Jesse French & Sons Piano Co.

• Decision Date: 10 November 1933
• Docket Number: No. 11336.,11336.
• Parties: PHELPS v. JESSE FRENCH & SONS PIANO CO.
• Court: Texas Court of Appeals

65 S.W.2d 374

PHELPS v. JESSE FRENCH & SONS PIANO CO.

No. 11336.

Court of Civil Appeals of Texas. Dallas.

November 10, 1933.

Appeal from Dallas County Court; Paine L. Bush, Judge.

Action by the Jesse French & Sons Piano Company against J. C. Phelps and cross-action by defendant. Judgment for plaintiff, and defendant appeals.

Affirmed.

Dallas C. Biggers and Carl C. Mays, both of Dallas, for appellant.

Peyton A. Ellison and Hoyt A. Armstrong, both of Dallas, for appellee.

LOONEY, Justice.

Jesse French & Sons Piano Company, an Indiana corporation, domiciled at New Castle in that state, brought this suit against J. C. Phelps, a resident piano dealer of the city of Dallas, to recover the amount due upon certain trade acceptances, alleged to have been executed by appellant as renewals of balances due on original notes, given for the purchase money of six pianos sold by appellee to appellant.

Appellant answered by general demurrer and general denial, and, in a cross-action, sought damages for the alleged breach of express warranties; the amount in controversy is revealed by appellant's prayer as follows: "Premises considered, defendant prays that plaintiff recover nothing herein, and that defendant have judgment for $1,242.81 against said plaintiff on defendant's cross action, and, in the event plaintiff recovers anything from this defendant, then that defendant have his offset as above set out."

On jury findings favorable to appellee, the court rendered judgment in its favor for the amount due upon the trade acceptances, and denied appellant recovery on the cross-bill, from which he appealed.

The case was largely tried on issues tendered in the cross-bill, and the errors assigned on appeal relate to the trial of those issues (save one mentioned later). While the jurisdiction of the county court to entertain the cross-bill was not challenged in the court below, nor is it challenged in this court, yet it is perfectly obvious that the matter in controversy exceeds the jurisdiction of said court. It follows, therefore, that appellant's cross-action must be dismissed, which necessarily disposes of all alleged errors incident to its trial. Billings v. Southern Supply Co. (Tex. Civ. App.) 194 S. W. 1170; Nichols v. Ellis (Tex. Civ. App.) 246 S. W. 713; Armstrong v. Clayton (Tex. Civ. App.) 255 S. W. 1015; Commercial Credit Co. v. Moore (Tex. Civ. App.) 270 S. W. 582.

Appellant suggests that, as appellee neither alleged nor proved that it had a permit to transact business in Texas, judgment should not have been rendered in its favor.

This question is raised for the first time on appeal, hence appellee contends that it comes too late and cannot be considered. To this we cannot assent. The authority cited by appellee announces the contrary doctrine. See Mansur & Tebbetts Implement Co. v. Beer, 19 Tex. Civ. App. 311, 45 S. W. 972 (writ denied).

The questions presented are these: Was appellee transacting or soliciting business in Texas at the inception of the contracts involved, or had it at that time established a general or special office in this state for the transaction of business, within the meaning of article 1529, R. S. 1925? The facts are these: Several months before the transaction with appellant, four of the pianos were shipped by appellee to the United Music Stores of Dallas, on a tentative sale, but, the sale having failed of consummation, the instruments were later sold to appellant, as the result of negotiations conducted by correspondence; he was given an order on the Music Stores for the instruments, and received delivery; sales of the other two instruments were consummated by correspondence, and they were shipped to appellant direct from appellee's factory in Indiana.

As to the two instruments shipped direct to appellant from the factory, the transactions were unquestionably of an interstate nature, and to that extent appellee could recover without regard to the provisions of our Foreign Corporations Act. See Texas & P. Ry. Co. v. Davis, 93 Tex. 378, 389, 54 S. W. 381, 55 S. W. 562, 564; Alexander Film Co. v. Lazeres & Morfesy (Tex. Civ. App.) 7 S.W.(2...