Richardson v. Wilson

• Decision Date: 01 May 1915
• Docket Number: (No. 8077.)
• Citation: 178 S.W. 566
• Parties: RICHARDSON v. WILSON.
• Court: Texas Court of Appeals

178 S.W. 566

RICHARDSON v. WILSON.

(No. 8077.)

Court of Civil Appeals of Texas. Ft. Worth.

May 1, 1915.

Rehearing Denied May 29, 1915.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by J. A. Wilson against T. I. Richardson and another. From a judgment for plaintiff against the named defendant, he appeals. Reformed and affirmed.

Ramsey & Odell and H. P. Brown, all of Cleburne, and R. S. Phillips, of Ft. Worth, for appellant. S. C. Padelford, of Cleburne, and P. E. Johnson, of Stockdale, for appellee.

CONNER, C. J.

This suit was instituted by the appellee against the appellant, T. I. Richardson, and J. M. Senter, to recover damages for alleged fraudulent representations of the value of a one-half interest in a grocery store at Lillian, Tex., given in exchange by Richardson to Wilson for the fixtures of a stock of drugs at Ft. Worth, Tex., and to recover an alleged balance due on the sale of the stock. The trial resulted in a judgment in favor of the plaintiff against the defendant Richardson for the sum of $1,370.38. The judgment, however, altogether discharged the defendant Senter.

The controlling question presented on this appeal from said judgment by the defendant Richardson arises from rulings of the trial court in the introduction of evidence. That this ruling may be understood it will be necessary to state, in an introductory way, that during the year 1911 a firm doing business in the name of Lowe Bros. advertised their stock of drugs at Ft. Worth for sale or exchange; that finally appellee, being induced by the contract of the appellant Richardson to take a one-half interest, agreed with Lowe Bros. to exchange an equity in certain land owned by him in Johnson county for the stock of drugs referred to at an agreed valuation of $8,500. This agreement with Lowe Bros. was executed on the 18th day of November, 1911. It provided, so far as necessary to state, that Wilson was to furnish abstracts of title to his land; that Lowe Bros. should in all respects comply with the Bulks Sales Law of Texas in regard to the sale of drugs and furnish Wilson, at the time of the consummation of the trade, an agreement signed by each and all of the creditors of Lowe Bros. agreeing to the sale. It further provided that, until the consummation of the sale, Tom G. Schultz, the manager of Lowe Bros.' business, should remain in charge of the stock and immediately open a new set of books, keep strict account of receipts and disbursements, and not to incur any expense, except in the ordinary and usual conduct of the business. It further provided that, if the trade was finally consummated, the said Schultz should account to Wilson for his conduct of the business and deliver to him the stock of drugs, furniture, and fixtures, together with all receipts of the business from the date of the contract, but that, if the trade should not be consummated, then the said Schultz should account to Lowe Bros. On the same day Richardson and Wilson entered into a written contract, wherein, so far as necessary to state, it was provided that:

"T. I. Richardson, for the consideration hereinafter named, hereby bargains and sells and agrees to convey by general warranty deed to J. A. Wilson 103 acres of land in Johnson county, Tex., and fully described in a deed executed by C. F. and Mattie Smith to T. I. Richardson, dated November 18, 1911, to which reference is here made."

In consideration of which, among other things, Wilson agreed —

"to transfer and deliver to T. I. Richardson an undivided one-half interest in a stock of drugs and fixtures located 900 Houston street, Ft. Worth, Tex., this day contracted to be sold to J. A. Wilson by H. P. and J. E. Lowe."

The contract provided that Richardson should furnish an abstract of title to Wilson of the 103 acres of land mentioned, and further recited that:

"This trade is made on the condition that the contract this day made between J. A. Wilson and H. P. and J. E. Lowe shall be consummated; in the event said trade shall not be consummated, then this contract shall be null and void."

On the 7th day of December thereafter the contract between Lowe and Wilson was fully consummated, whereupon Wilson, in consideration of the conveyance of the 103 acres of land mentioned in the Wilson-Richardson contract of November 18, 1911, executed and delivered to Richardson the following bill of sale:

"Know all men by these presents, that I, J. A. Wilson, of Tarrant county, Tex., in consideration of $4,000 cash to us paid by T. I. Richardson, receipt of which is hereby acknowledged, have transferred, bargained and sold, and by these presents transfer, bargain and sell, unto the said T. I. Richardson, of Johnson county, Tex., the following described property situated in the city of Ft. Worth, Tex., to wit: The same being one-half interest in the business known as the Ft. Worth Pharmacy, situated at the southwest corner of Houston and Eighth streets, Ft. Worth, Tex., including the entire stock of merchandise, together with all furniture and fixtures in said place of business, at No. 900 Houston street, including also the furniture and fixtures in the basement of said place or building, except electric motor and electric clock. The grantor warranting title to all the property hereby conveyed and warrant and guarantee against all claims of any character against the said property or said business, according to bill of sale conveyed to me by Lowe Bros. To have and to hold the said business, merchandise, furniture, and fixtures unto the said T. I. Richardson, his heirs and assigns forever."

Wilson and Richardson thereupon, as partners, entered upon the prosecution of business as druggists, Schultz having fully accounted to Wilson as provided in the contract between Wilson and Lowe Bros., and continued the prosecution of said business until the 19th day of December, 1911, when Wilson sold the one-half interest that had been retained by him to Richardson. The contract then made between them was as follows:

"Know all men by these presents, that I, J. A. Wilson, of Johnson county, Tex., transfer, bargain and sell unto T. I. Richardson, of Johnson county, Texas, my undivided one-half interest in the business known as the Ft. Worth Pharmacy, at the corner of Eighth and Houston streets, Ft. Worth, Tex., together with all furniture and fixtures in said place of business. It is hereby understood that the fixtures are to be invoiced at $5,000, and J. A. Wilson discounts his one-half interest in fixtures 50 per cent., or a total of $1,250; the remainder of the stock of merchandise in the store to be invoiced at actual cost of same, J. A. Wilson's interest to be paid for in cash, less 5 per cent. I hereby acknowledge the receipt of $1,250 this day paid to me to apply upon the foregoing bill of sale and contract. All the accounts to date in favor of said business are to be included in invoice, and the indebtedness upon same, after being deducted from said invoice, the result shall conclude the total inventory. It is further and mutually agreed that the said T. I. Richardson hereby agrees to assume and release the said J. A. Wilson from any and all debts that may have accrued against the firm of Wilson & Richardson, including lease on said building, No. 900, corner Eighth and Houston streets, which is now under lease to said firm.

"Given under our hands this the 19th day of December, A. D. 1911.

                                 "J. A. Wilson
                                 "T. I. Richardson
                                     "By J. M. Senter."
                

At the time of this contract, no cash was paid; the $1,250 acknowledged by Wilson to have been paid being represented by Richardson's interest in a grocery store at Lillian, Tex., referred to in the beginning of this opinion, and then represented to Wilson as being of the value of $1,250.

An auditor was appointed by the court with instruction to find the amount of merchandise in the drug store on hand on December 19, 1911, at actual cost, less 5 per cent., exclusive of the furniture or fixtures belonging to said business, the different amounts of the accounts receivable and accounts payable on said date, the amount of cash on hand on said date, and then to strike balances and find the value of J. A. Wilson's interest in the stock of merchandise on hand at the time of the sale. The auditor reported a balance of $1,432.32 due to Wilson for his interest in the stock of merchandise on December 19th. This balance, plus $900 damages, found in a special verdict of the jury under the court's instructions to be the difference in the value in the stock of groceries at Lillian as it existed on the 19th day of December, 1911, and as it was represented to be, minus certain credits found by the court, aggregating $962.14, was made the basis of the judgment, which, as before stated, was for the sum of $1,370.38.

Among the items charged to Richardson in the auditor's report and approved by the court was an aggregated item of $512.13, made up of debts of the drug business that accrued during the administration of Schultz, and it is about this item and several other minor items of like character that the principal questions in this...