Southern Bag & Burlap Co. v. Boyd, Motion No. 9532; No. 5921.

• Decision Date: 16 May 1931
• Docket Number: Motion No. 9532; No. 5921.
• Citation: 38 S.W.2d 565
• Parties: SOUTHERN BAG & BURLAP CO. v. BOYD, Judge.
• Court: Texas Supreme Court

Page 565

38 S.W.2d 565

SOUTHERN BAG & BURLAP CO. v. BOYD, Judge.

Motion No. 9532; No. 5921.

Commission of Appeals of Texas, Section A.

May 16, 1931.

Original application by the Southern Bag & Burlap Company for a writ of mandamus prayed to be directed to Ewing Boyd, Judge of the District Court of the Fifty-Fifth Judicial District of Texas.

Writ granted in part, and in part refused.

Fulbright, Crooker & Freeman, of Houston, for relator.

Ewing Boyd, Sewell Myer, and Lewis Fisher, all of Houston, for respondent.

CRITZ, J.

This is a mandamus proceeding brought by Southern Bag & Burlap Company, a corporation, hereinafter designated relator, against the Honorable Ewing Boyd, judge of the district court of the Fifty-Fifth judicial district of Harris county, Tex., hereinafter designated respondent. It seems from the record before us that King and Perkins, hereinafter designated plaintiffs, sued relator in the district court of Harris county, Tex., for an alleged indebtedness due by relator to the plaintiffs.

We gather from the record in the instant proceeding that in the suit above referred to the plaintiffs are suing relator for certain commissions alleged to be due them by relator on the sale of certain products manufactured and sold by relator. The claim for commissions is based upon an alleged written contract dated March 20, 1926, wherein plaintiffs are made the agents of relator to sell certain products belonging to it in a certain designated territory. It is alleged by the plaintiffs that they have in all things complied with the contract, but that relator has failed and refused to pay them the commissions earned thereunder.

It is also alleged by plaintiffs that relator is in possession of all books and records containing all information relative to such sales, and showing the amount of commissions earned by the plaintiffs, and that the plaintiffs have no records of such sales, or means of showing the items and amount of commissions earned by them except the books and records of the relator. It is also alleged that it was the duty of the relator, under the contract, to keep such books, records, and data for the mutual benefit of both the plaintiffs and the relator, and that only the relator could have made or kept a record of such sales. In this connection it is alleged that the relator at all times understood that it was being depended upon by plaintiffs to keep a complete and accurate account of all such sales.

Plaintiffs also alleged in their petition certain sales upon which plaintiffs were entitled to commissions, and further alleged that by reason of the failure and refusal of relator to permit plaintiffs to see the records of sales made by relator, plaintiffs are unable to state more in detail the names, addresses, parties, or persons so purchasing the products of relator, or the dates of such purchases. It is also alleged that the plaintiffs have made demand on relator for an accounting with reference to the sales on which plaintiffs are entitled to commissions, but that the relator has refused to give them any information with reference to such sales or to make any such accounting.

It is also shown that after the filing of the suit in the district court, and after the service of citation therein, and after relator had answered, the attorneys representing the plaintiffs made various efforts to get the information and data with reference to the sales above mentioned. Also they made various efforts to take the oral deposition of the relator's officers, agents, and bookkeepers. In this connection it is shown that various efforts have been made to get access to the books of the relator by having them brought before a notary public and otherwise. All of these efforts have ended in failure.

In this condition of affairs the plaintiffs filed in the district court of Harris county, Tex., in the original cause of King and Perkins v. Southern Bag & Burlap Company, the following application:

"Comes now the plaintiffs C. C. King and M. R. Perkins, doing business under the name and style of King & Perkins, and represents to this Honorable Court as follows:

"That they have heretofore and since the institution of this suit attempted by agreement of parties through their respective Attorneys of Record to take the Depositions of certain witnesses in this case, to-wit: J. M. Johnson and B. Bateman. That heretofore, to-wit: about the middle of February, 1931, and subsequent to the filing of this suit Counsel for Plaintiffs approached Counsel for Defendant Southern Bag & Burlap Company and advised them that they desired to take the Depositions of the witnesses hereinbefore named and that they would need present at the taking of said Depositions certain books and records of the Defendant Company which Counsel for Plaintiff described to Counsel for the Defendant.

"That Counsel for the Defendant consented to the taking of said Depositions by agreement and it was decided between Counsel for plaintiff and defendant that it would therefore not be necessary to issue a Commission for the taking of said Depositions since Counsel for Defendant agreed to have present at the taking of said Depositions the witnesses above named, together with the books, records, etc., above referred to. That Counsel for Plaintiffs, in order to prevent any error or mistake being made as to the papers, books, records, etc. which they desired to have present at the taking of such Depositions, wrote Defendant's Counsel letters setting forth the papers, books, records, etc. needed at the time and place of the taking of the Depositions.

"That after several efforts to agree upon a convenient date for the taking of said Depositions Counsel for both parties finally agreed upon March 2, 1931, at 2 o'clock P. M. in the office of Fulbright, Crooker & Freeman in the State National Bank Building, Houston, Texas.

"That a few hours before the time so fixed for the taking of said Depositions one of Plaintiff's Counsel, to-wit: Lewis Fisher, called on the telephone one of Defendant's Counsel, to-wit: J. H. Crooker and asked if everything would be in readiness at 2 P. M. on March 2d, 1931, to take said Depositions as agreed. The said Crooker replied that it would be. Counsel for Plaintiffs, relying upon said agreement and believing that Defendant's Counsel had made said agreement in good faith, and that they intended to comply therewith did appear, together with their clients and the Notary Public theretofore agreed upon, at the office of Fulbright, Crooker & Freeman in the State National Bank Building at 2 P. M. on March 2nd, 1931, ready and prepared to take said Depositions under said agreement.

"That after Plaintiffs, the Notary Public and Plaintiffs' Counsel were seated in the offices of Fulbright, Crooker & Freeman and after all preparations had been completed for the taking of said Depositions by agreement, one of Defendant's Counsel, to-wit: W. B. Bates, for the first time then stated to Plaintiffs and to Plaintiffs' Counsel that they as Attorneys for the Defendant Southern Bag & Burlap Company had decided to decline to produce any of said books, papers, records, etc., above referred to for the purpose of being used in connection with the taking of said Depositions.

"That said Bates further stated that the books and records above referred to had been turned over to some Auditor whose name he declined to disclose. The said Bates did not state the purpose or reason for said books, records and papers being delivered to said Auditors.

"Thereupon Plaintiffs' Counsel remonstrated with the said Bates, stating he should at least have advised them at an earlier date if he did not intend to comply with his agreement and thereby saved Plaintiffs' Counsel and the Plaintiffs from being placed in this situation and position.

"The said Bates then stated that they as Counsel for the Defendant did not think that Plaintiffs had any right to either see or examine said books, records, papers, etc. or to use them for any purpose in connection with the trial of said case or the taking of said Depositions and the said Bates further stated that they could not then or at any future time produce said books, records, papers, etc. either at the trial of this case or before any Notary Public taking testimony in this case. Said Bates further stating that they would not produce said books, records, papers, etc., before any Notary Public even though Subpoena Duces Tecum was served, giving as his reason therefor that in his opinion the Plaintiffs' pleading was not sufficient to sustain any Notary Public in the issuance of such Subpoena.

"That after the failure to have said Depositions taken by agreement Plaintiffs thereafter, through their Attorneys of Record, served the Defendant Southern Bag & Burlap Company and its Attorneys of Record, Fulbright, Crooker & Freeman with notice of their intention to take the Depositions in this case of certain witnesses whose names were set out in said Notices. That the following is a substantial copy of the notice so served on Defendant and its Attorneys, to-wit:

                                      "`March 3, 1931
                "`Fulbright, Crooker & Freeman
                 "`Attorneys of Record for Southern Bag &amp
                     Burlap Company
                "`Houston, Texas
                

"`Gentlemen:

"`You are hereby notified that in Cause No. C-191,746, styled King & Perkins vs. Southern Bag & Burlap Company pending in the District Court of Harris County, Texas, for the 61st Judicial District, the Oral Depositions of the witnesses N. D. Anderson, W. L. Clayton, C. E. Shipp, J. V. Scott, J. M. Johnson and D. Bateman will be taken by King & Perkins, Plaintiffs in the above styled and numbered cause before Gavin Ulmer, a Notary Public in and for Harris County, Texas, as, at ten o'clock on March 18th, 1931, in Suite Number 1100, Room No. 1103 of the Scanlan Building, which Building is situated at the corner of Main Street and Preston Avenue in Houston, Texas.

"`You are further notified that request for a...