Twin City Co. v. Birchfield

• Decision Date: 05 February 1921
• Docket Number: (No. 8567.)
• Citation: 228 S.W. 616
• Parties: TWIN CITY CO. et al. v. BIRCHFIELD.
• Court: Texas Court of Appeals

228 S.W. 616

TWIN CITY CO. et al. v. BIRCHFIELD.

(No. 8567.)

Court of Civil Appeals of Texas. Dallas.

February 5, 1921.

Rehearing Denied March 5, 1921.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Suit by J. T. Birchfield against the Twin City Company and another. From judgment for plaintiff granting temporary injunction, defendants appeal. Reversed, and temporary injunction dissolved.

Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellants.

Walker & Baker, of Cleburne, and Crane & Crane, of Dallas, for appellee.

TALBOT, J.

This suit was brought by appellee, J. T. Birchfield, against Twin City Company, a corporation, and R. B. George, in the district court of Dallas county, Tex., to recover damages for an alleged breach of warranty growing out of the purchase of certain machinery and to restrain the defendant R. B. George, by writ of injunction, from the further prosecution of a suit on notes given by appellee for purchase of the machinery mentioned, which suit was filed and then pending in the district court of Harris county, Tex. A temporary injunction was granted, and appellant R. B. George filed a motion to dissolve the same, which was heard by the court on the 20th day of November, 1920, and in all things overruled; whereupon appellant, in open court, duly excepted and gave notice of appeal to this court, and the action of the trial court in refusing to dissolve such injunction is now before this court for review.

The petition alleges that on April 26, 1919, the appellant George, and B. P. Clark, as agents of the Twin City Company, proposed to sell to the appellee, Birchfield, an oil burning engine; that as an inducement for appellee to buy, George and Clark stated that the engine would pull the appellee's separator much easier than the steam engine with which the separator was then being operated; that a boy could operate the oil burning engine and that it would not be necessary to have a high-priced man for that purpose; that the oil burner could be operated on 60 gallons of oil a day, based on 10 hours' steady run, and that it would run the appellee's separator with all the grain the separator would take. The petition further alleges that the appellant R. B. George represented to the appellee that the gears of the oil burner, which they proposed to sell to appellee, were steel cut and that there was no possible chance for the engine to give any trouble; that the engine would not get hot enough for water to boil in the radiator, and would burn coal oil, or any other low-grade fuel that any other engine would burn; that appellee demanded that a written contract be entered into, to the effect that the said engine would operate his said separator successfully in all kinds of grains; that the said R. B. George replied that he would put such a guaranty in the contract; that plaintiff upon that promise and believing that the guaranty, as broad and as comprehensive as their representations, would be put in the contract, stated to him that upon those conditions he would buy said engine, and thereupon executed a written contract for the purchase of said machinery.

Plaintiff further averred that he had been dealing with the said Twin City Company through the said R. B. George for a long while; that he knew them well, as he believed, and had confidence in their statements, and that for this reason he did not carefully scrutinize the written contract which he was assured by the defendant R. B. George would contain all of the stipulations and agreements entered into preceding its execution, and all of the representations made by him and the said Clark; that in pursuance of the terms of the said contract the plaintiff gave to the said George and Clark his check for $250 to pay for the freight at the time he signed said contract, and they agreed to sell to him an engine which they had upon the sales room floor at Dallas; that in pursuance of the terms of the contract, he (appellee) executed his two notes for $1,300 each, payable to the Twin City Company, one due on the 1st day of October, 1919, and the other on the 1st day of October, 1920, both of which notes bore interest at the rate of 8 per cent. per annum; that he was an experienced threshing machine man, and was so experienced on the date when the engine was delivered to him; that he attempted to operate this new engine delivered to him, but he found that it was entirely insufficient, and would not move the separator from point to point, as it was originally designed to do, with any degree of speed, nor would it operate the separator at exceeding about one-half of its capacity; that plaintiff applied to the defendants for an expert to operate same until it could be made to do the work that it was warranted to do; that the expert came, but it could not be made to fulfill its guaranty; that half work was all that it would do under the most favorable circumstances.

Appellee further alleged that the two notes above described are now claimed by R. B. George, but that as plaintiff is informed and believes, they are the property of the Twin City Company; that the said R. B. George has, in his own name, brought suit thereon against plaintiff in the district court of Harris county, Tex., to plaintiff's great damage, and that unless restrained by injunction the plaintiff will be compelled to try out the validity of the said notes and the fact of their ownership in said Harris county district court. Plaintiff avers that the transfer of the said notes to said R. B. George was fraudulent and was made for the purpose of enabling the said R. B. George to bring suit thereon in his own name, but for the benefit of the said Twin City Company; that by bringing said suit at Houston, Harris county, Tex., which is some 300 miles distant from plaintiff's home, plaintiff would be at a great disadvantage in making his defense and would be thereby prevented from making and prosecuting his claim for damages herein; that he had been damaged in the sum of $2,515.32, for which he prayed judgment, together with judgment for $250 freight bill and the value of the engine which he gave to Twin City Company, to wit, the sum of $1,200, and for judgment canceling the notes given at the time he purchased said machinery; also, that the defendant R. B. George be enjoined and restrained from the further prosecution of his suit on said notes in Harris county, Tex., and that he be compelled to answer what, if any, interest he had in said notes and how he acquired same. The judge of the Forty-Fourth judicial district court of Dallas county, Tex., indorsed upon said petition his fiat, directing the clerk of the district court to issue the writ of injunction prayed for upon the plaintiff giving bond as required by law in the sum of $1,000. The bond was given and the injunction issued as directed.

Prior to the institution of this suit appellee brought suit against the Twin City Company in the district court of Johnson...