Southern Properties v. Carpenter

• Decision Date: 14 May 1932
• Docket Number: No. 11076.,11076.
• Parties: SOUTHERN PROPERTIES, Inc., v. CARPENTER.
• Court: Texas Court of Appeals

50 S.W.2d 876

SOUTHERN PROPERTIES, Inc., v. CARPENTER.

No. 11076.

Court of Civil Appeals of Texas. Dallas.

May 14, 1932.

Rehearing Denied June 11, 1932.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by the Southern Properties, Inc., against Hugh Carpenter, in which defendant filed a cross-action. From a judgment for defendant, plaintiff appeals.

Affirmed.

Locke, Locke, Stroud & Randolph, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

LOONEY, J.

Hugh Carpenter, for twenty years prior to March 2, 1926, was engaged in retailing and delivering ice to customers in a certain territory within the business district of the city of Dallas, and on the date named he and Southern Properties, Inc., manufacturer and wholesale and retail dealer in ice in said city, made an agreement in writing, Carpenter selling to the corporation his equipment, consisting chiefly of a team of two horses, harness, and a delivery wagon, and entered the service of the corporation for a period of one year, at a minimum wage of $4 per day, it being stipulated that the employment should not be terminated before the expiration of one year "without just cause," and further that, "if at any time hereafter he (Carpenter) ceases for any cause or in any manner whatever to be employed by the said Southern Properties, Incorporated, he will not engage to any extent whatever, directly or indirectly, for himself or for another, or others, as proprietor, employee or otherwise, in the business of selling or delivering ice within that portion of the City of Dallas, Texas (describing the territory within which Carpenter had theretofore sold and delivered ice) for a period of two years after his said employment with Southern Properties, Incorporated, shall cease."

On being discharged May 15, 1926, without just cause, Carpenter instituted suits to recover wages that accrued under the contract; one of which reached this court on appeal, was affirmed in his favor, and is reported in 300 S. W. 963, the result being to exhaust Carpenter's right to collect wages, but during the month of February, 1927, having secured a small equipment, he began again the sale and delivery of ice in his old territory, and on February 17, 1927, the corporation filed suit against him, invoking the provision of the contract quoted above, praying that he be enjoined from engaging in the ice business in the described territory for the period extending to March 15, 1928 (being two years succeeding the date of his discharge); a restraining order was granted ex parte, and Carpenter was notified to show cause why the order should not be continued as a temporary injunction. He answered the suit on its merits and filed a cross-action against the corporation and sureties on its injunction bond, for damages alleged to have accrued by reason of the wrongful issuance of the writ. After several postponements, during which the order was continued in force, the case, by agreement of parties, was tried on its merits March 3, 1927, resulting in final judgment in favor of the corporation, perpetuating the temporary writ, and denying Carpenter recovery on his cross-action, from which he appealed to this court. We reversed and remanded the cause, because the corporation failed to exhibit a case calling for equitable relief, in that it did not come with clean hands, having first breached the contract by discharging Carpenter without just cause, nor did it, under the facts and circumstances disclosed, offer to do equity. Case reported in 299 S. W. 440.

On second trial, the case was submitted to a jury on special issues, and, on findings favorable to Carpenter, judgment was rendered in his favor against the corporation for $1,380 damages, and against the sureties for $1,000, being the limit of their liability under the bond. On appeal, we reversed the judgment and remanded the cause on issues that have been eliminated; hence it is not necessary that they be noticed further. See 21 S.W.(2d) 372. The last trial also resulted in a judgment denying the corporation injunctive relief and in favor of Carpenter against it for $980 damages (the sureties having theretofore been eliminated), from which this appeal is prosecuted.

The recovery by Carpenter was for damages suffered during the time he was under the permanent injunction, from March 3, 1927, to November 2, 1927, the date the judgment of dissolution by this court (299 S. W. 440) became final, by refusal of writ of error by the Supreme Court.

By appropriate assignments and propositions appellant contends that the cross-action of appellee for damages resulting from the permanent injunction is in essence an action for malicious prosecution; that, the writ having been granted only after full hearing, the presumption should be indulged that the same was not issued maliciously and without probable cause, therefore the judgment rendered on the cross-action was erroneous and should be set aside, in other words, the question presented is: Can a defendant in an injunction suit recover damages resulting from final judgment perpetuating a temporary injunction entered after full hearing? Appellant contends that, under the circumstances named, there existed no liability and that the...