Read v. Chambers

• Decision Date: 02 April 1898
• Parties: READ v. CHAMBERS.
• Court: Texas Court of Appeals

45 S.W. 742

READ v. CHAMBERS.

Court of Civil Appeals of Texas.

April 2, 1898.

Appeal from Red River county court; R. H. Wello, Judge.

Action by D. A. Chambers against B. F. Read and another. From a judgment for plaintiff, defendant Read appeals. Reversed.

Cate & Teagarden and Shaw & Johnson, for appellant. Lenox & Lenox, for appellee.

BOOKHOUT, J.

This was an action brought by the appellee, D. A. Chambers, in his individual capacity, to recover damages from an alleged firm or partnership composed of appellant, B. F. Read, and one J. H. Brown, sued as partners under the firm name of Brown & Read. Read, the appellant, alone was served with process, and alone appeared to defend said cause in the court below. There was a trial, and judgment for plaintiff, and defendant Read has prosecuted an appeal to this court.

Appellant's first assignment of error complains of the action of the court in overruling his exception to the petition because of a nonjoinder of parties plaintiff. He also raised the question of want of proper parties plaintiff by a plea in abatement setting up the incapacity of plaintiff to maintain the suit in his individual capacity. The allegations of the petition were: That about February 21, 1893, the said Brown & Read pretended to have the right to sell a certain patented device known as the "Bonham Adjustable Harrow," and also the right from the patentee to sell and transmit the right to others to manufacture and sell said machine in certain territory in Texas, including Red River county and 21 other counties in Northeast Texas. That, in order to induce plaintiff and others to buy said right, or an interest therein, the said Brown & Read, acting together in said Red River county about the time named, falsely represented to plaintiff and others that said patented implement was a valuable farm implement; that it was a good seller; that the demand for same among farmers for use was greater than could be supplied; that the implement would successfully cultivate young corn and cotton in ridge; that it was fine for pulverizing the soil; that there were already two or more factories manufacturing said machine in successful operation,—one at Mineola, Tex., and one at Dublin, Tex. That said Brown & Read also falsely represented to plaintiff and others that they, Brown & Read, had taken from good and solvent men in Red River county alone 650 bona fide orders for said harrow at the price of $12.50 each, which orders were to be delivered to and would be delivered to the parties purchasing 22 counties in Northeast Texas in which to sell and manufacture said machine, and paying said Brown & Read $5,000 for same. That all these representations were made to induce plaintiff and his co-vendees to purchase the right to manufacture and sell said patented implement in said territory of Red River county and 21 other counties in Northeast Texas and North Texas, and that plaintiff relied upon said representations, and believed them to be true, and, so relying upon said belief, he was induced to sign a subscription list with Levi Deane, H. C. Bailey, Isaac Gust, Sr., L. B. Wade, T. J. Hale, and Ed Byrd, in which each one agreed to pay a certain sum towards making said purchase of said territory; and that afterwards, about February 21, 1893, plaintiff and others named received a deed from W. P. Bonham, the patentee of said patented implement, through said J. H. Brown, as his attorney in fact, conveying to plaintiff and the other parties named the right to manufacture and sell said patent in Red River county and 21 other counties lying in North and Northeast Texas, at which time plaintiff executed to said Brown his certain promissory note for the sum of $500, payable one year after date, with interest, etc., being the amount he had agreed to pay as his part of said purchase money according to said list, and which plaintiff alleges entitled him to a one-tenth interest in said patent right and territory. Plaintiff alleges that he afterwards discounted said note direct to said Brown & Read, paying the sum of $410 for same on March 10, 1893, which sum he seeks to recover, with interest from said date at 6 per cent. per annum from March 10, 1893. Plaintiff alleged that all of said representations so made were untrue, and that the said patent was worthless; that after the deed to said territory was delivered to plaintiff and his co-vendees, the said Brown & Read, on, to wit, about March 28, 1893, delivered to plaintiff a large batch of said pretended orders; that they were false, fictitious, and forged, and worthless, and not as represented, and that the parties upon whom they were made denied making the orders, or buying the harrows, and that when plaintiff and his associates tried to deliver said harrows to the parties to whom Brown & Read represented they had sold said harrows, and whose names were given to plaintiff and his co-vendees, refused to accept same, and denied that they ever agreed to buy said harrows, and that the said pretended orders were worthless, and said patent worthless, and the harrows made under same worthless and unfitted for the purposes to which same could be put upon the farm; whereby plaintiff was damaged in the sum paid on said note. The contention of appellant is that Chambers cannot maintain the suit in his individual capacity, but the same accrued to him as a member of the Detroit Harrow & Manufacturing Company, and can only be maintained by said company in its collective capacity.

We will consider the exception and plea in abatement together, and in doing so will notice some of the evidence in connection with the allegations in the...