Texas Brewing Co. v. Meyer
| Citation | 38 S.W. 263 |
| Parties | TEXAS BREWING CO. v. MEYER et al. |
| Decision Date | 12 December 1896 |
| Court | Court of Appeals of Texas |
Appeal from district court, Tarrant county; W. D. Harris, Judge.
Action by D. A. Meyer against the Texas Brewing Company to set aside a judgment theretofore rendered in favor of said company against plaintiff and another. From a judgment setting aside the former judgment, defendant appeals. Reversed.
W. R. Sawyers, for appellant. A Chesley and Bell & Shelburne, for appellees.
This suit was brought by appellee D. A. Meyer to set aside a judgment rendered by the district court of Tarrant county, in cause No. 8,252, in favor of appellant, a private corporation, against William Wilms and said Meyer. The cause of action merged in that judgment arose under a written contract entered into May 3, 1893, between the Texas Brewing Company and William Wilms, and signed by D. A. Meyer, as guarantor or surety for Wilms, which obligated it to sell beer to Wilms upon terms therein specified, and prohibited Wilms, as agent or otherwise, from dealing in or handling the product of any other brewing company, requiring him to give prompt notice to appellant "should any competition arise on the traffic and sale of beers at Sealy, Texas," the place where Wilms was engaged in business. Appellant's place of business was Ft. Worth, Tex., where it had a beer brewery; and it undertook by this contract to sell and deliver an unlimited quantity of beer, upon specified terms, to Wilms at Sealy, and to furnish him its ice house located there, and beer wagon connected therewith. The recovery was for the price of the beer, less credits, sold under this contract. Appellee Meyer did not learn that judgment had been rendered against him till after the issuance of execution. This suit was consequently brought to restrain said execution and judgment, and obtain a new trial, on the ground that the beers had not been sold in accordance with the terms of the fifth clause of the contract, and that the misleading conduct of appellant's counsel was the sole cause of the failure to interpose this defense on the trial. Upon these two issues the case was tried, and judgment rendered setting aside the former judgment as to both defendants therein; but judgment was again rendered against Wilms, who, though he appeared on the last trial, offered no excuse for not having appeared on the first. This judgment rests in part upon a special verdict, and in part upon the court's conclusions...
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