Stallings v. Wood

• Decision Date: 20 December 1924
• Docket Number: (No. 9211.)
• Citation: 267 S.W. 537
• Parties: STALLINGS et al. v. WOOD et al.
• Court: Texas Court of Appeals

267 S.W. 537

STALLINGS et al. v. WOOD et al.

(No. 9211.)

Court of Civil Appeals of Texas. Dallas.

December 20, 1924.

Error from Dallas County Court at Law; W. N. Coombs, Judge.

Action by Mary D. Wood and another against M. E. Stallings and another. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

R. E. L. Saner, John C. Saner, J. W. Rodgers, and Chas. D. Turner, all of Dallas, for plaintiffs in error.

W. H. Graham, of Dallas, for defendants in error.

VAUGHAN, J.

This suit was instituted on the 22d day of July, 1922, by defendants in error, as plaintiffs, against M. E. Stallings, one of the plaintiffs in error, as defendant. The original petition on which the judgment appealed from was rendered contains, among others, the following allegations material to be stated in disposing of the cause on appeal:

"As an inducement to get the plaintiffs to make said trade, the defendant represented to the plaintiffs that the use of the recipe in the manner provided in the same would make up sufficient material for 12 display cans of 320 cakes each; that all of said 450 or 500 display cans were in Dallas, except 75 cans, which were in Fort Worth, and which he would deliver to the plaintiffs; that he would furnish a driver to work three days in mixing and showing how to mix the cakes and to go with the truck driver of plaintiff until all of the cans were located; that said business would earn $15 per day clear, and in this connection plaintiffs allege that the defendant failed and refused to deliver 224 of the cans which he had contracted to furnish.

"Plaintiff alleges that as to the recipe it was found that by a compliance therewith only 8 cans of 320 cakes each could be made, thereby increasing the cost of making said cakes 33 1/3 %, and when the defendant represented that a compliance with said recipe would produce 12 cans of 320 cakes each he knew that said representation was false, and he made the same fraudulently for the purpose of deceiving the plaintiffs, and the plaintiffs relied upon such representation, and were deceived thereby; that the defendant failed to deliver 224 of the cans which he contracted to furnish; that the driver which he furnished failed to locate and check up all of the cans which the defendant contracted to locate and check up and that said business would not earn $15 per day clear.

"When the plaintiffs discovered that the defendants' representations as to the recipe were false, and when the defendant refused to deliver all of the cans which he contracted to deliver, and when he failed to locate and check up all of the cans he contracted to locate and check up, and when plaintiffs ascertained that said business would not earn $15 per day clear by operating the same in the manner which the defendant said to operate it, these plaintiffs immediately called upon the defendant for a rescission, and tendered back to the defendant all of said material and supplies, and requested the return of their money paid and of the obligations executed and delivered to the defendant.

"Premises considered, plaintiffs pray that the defendant be cited to appear and answer this petition that upon final hearing hereof plaintiffs have judgment against the defendant for the sum of $600 and for costs of suit, and for such other and further relief, general or special, legal or equitable, as plaintiffs may show themselves entitled to."

In addition to the above, defendants in error in substance allege that they had entered into a contract with M. E. Stallings, one of the plaintiffs in error, for the purchase of the assets of the Mother Sawyer Cake Company (as listed in said petition) including good will, for an agreed purchase price of $500, of which $50 was paid in cash and a note of $450 was executed for the balance; that the note of $450 was secured by a chattel mortgage upon the property purchased, and further secured by a note of $200 the property of defendants in error, which was collected and the proceeds retained by plaintiff in error M. E. Stallings. The said M. E. Stallings filed a motion to quash the service of citation because the citation was served upon M. M. Stallings, who was not a party to the suit. This motion is not shown by the record to have been acted upon. Subsequent to the filing of said motion to quash said M. E. Stallings filed a general demurrer and general denial. In this state of the record judgment was rendered in favor of defendant in error on the 16th day of May, 1923, for the sum of $600, and contains the following recital:

"It appearing to the court that the defendant has heretofore answered but failed to appear and further defend this suit, the court proceeded to hear and determine this cause. No jury being demanded, all matters of fact as well as of law were submitted to the court, who, after hearing the testimony of plaintiffs, is of the opinion that plaintiff is entitled to recover the sum of $600 from the defendant."

On August 23, 1923, the original defendant, M. E. Stallings, joined pro forma by her husband, M. M. Stallings, duly perfected an appeal from said judgment by writ of error to this court.

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