Simmons Co. v. Spruill
| Decision Date | 18 September 1939 |
| Docket Number | No. 5053.,5053. |
| Citation | 131 S.W.2d 1026 |
| Parties | SIMMONS CO. v. SPRUILL. |
| Court | Texas Court of Appeals |
Underwood & Strickland, of Amarillo, for plaintiff in error.
Hill & Adkins, of Shamrock, and C. C. Fillmore, of Wichita Falls, for defendant in error.
Defendant in error, D. F. Spruill, filed this suit on October 19, 1937, against plaintiff in error, alleging that in accordance with the terms of an oral contract entered into between him and the agent of plaintiff in error he negotiated a sale of certain hotel furniture, the retail price of which was $2,146.25. He alleged that under the terms of the contract of employment, his commission for making the sale was to be the difference between the retail price of the furniture and its wholesale price which he alleged was $1,767, the difference being $379.25, for which he prayed judgment.
Under the terms of the contract, according to the allegations of the petition, the furniture was to be sold on credit and the commission paid when the purchase price was liquidated and he alleged it was liquidated by the purchaser on December 26, 1934. He alleged that by certain letters addressed to him by plaintiff in error the justness of his claim for commission had been acknowledged, thus removing the bar of limitation.
Citation was duly served upon the agent of plaintiff in error at Dallas and on the 4th of January, 1938, when the case was regularly called for trial, plaintiff in error made default. A jury being waived by defendant in error, the court proceeded to hear testimony concerning the various phases of the case, particularly in reference to the damages or amount due defendant in error under his alleged contract of employment. Judgment was rendered by the court for the amount sued for and plaintiff in error has duly perfected a writ of error which places the record before this court for review.
The case is presented upon a single assignment of error to the effect that the court, on the basis of the evidence introduced, committed fundamental error in rendering judgment for defendant in error. Passing over the question of the sufficiency of the assignment of error and proposition, the record shows that citation was duly issued and served upon the agent of plaintiff in error; that the case was duly called for trial and plaintiff in error failed to appear or file an answer. No question is raised as to the service nor is the jurisdiction of the court brought into question. A judgment by...
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Johnson v. Brown
...determined by the default. See Rule 243; Southern Steamship Co. v. Schumacher, Tex.Civ.App., 154 S.W.2d 283, citing Simmons Co. v. Spruill, Tex.Civ.App., 131 S.W.2d 1026; 25 Tex.Jur., page 406, et seq. (Sections 41 and 42). The only questions which could be raised here concerning the eviden......
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Southern S. S. Co. v. Schumacher
...of the petition are to be taken as proved and admitted. This is the legal consequence of a judgment by default. Simmons Co. v. Spruill, Tex.Civ.App., 131 S.W.2d 1026; Milford v. Culpepper et al., Tex.Civ.App., 40 S.W.2d 163; Citizens' Bank v. Brandau, Tex.Civ.App., 1 S.W.2d 466, writ Under ......