W. T. Rawleigh Co. v. Watson

• Decision Date: 18 October 1923
• Docket Number: (No. 2.)
• Citation: 256 S.W. 955
• Parties: W. T. RAWLEIGH CO. v. WATSON et al.
• Court: Texas Court of Appeals

Page 955

256 S.W. 955

W. T. RAWLEIGH CO. v. WATSON et al.

(No. 2.)

Court of Civil Appeals of Texas. Waco.

October 18, 1923.

Rehearing Denied December 13, 1923.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Action by W. T. Rawleigh Company against W. O. Watson and others. Judgment for defendants and plaintiff appeals. Affirmed.

Wear, Wood & Wear, of Hillsboro, for appellant.

Collins, Dupree & Crenshaw, of Hillsboro, for appellees.

BARCUS, J.

The W. T. Rawleigh Company, an Illinois corporation, filed this suit in Hill county against W. O. Watson, as principal, and W. N. Watson, Tom Tyler, and J. P. Biggers, as sureties or guarantors, to recover a balance of $747.69 due on goods, wares, and merchandise purchased by W. O. Watson under a written contract with appellant. Appellant alleged the execution and delivery of the principal contract by appellee W. O. Watson, and the execution and delivery of the guaranty contract by the other appellees, and the acceptance of both of the contracts, and the sale of the merchandise, and the delivery of same f. o. b. cars at Memphis, Tenn., and that same constituted interstate commerce; and alleged that appellees promised and agreed to pay for such merchandise and asked for a recovery thereof, with interest.

The appellees admitted the correctness of the account sued on and that appellant was a foreign corporation, and that the transaction between appellant and appellees out of which the suit arose was an interstate commerce transaction, and after the jury was impaneled, and before any testimony was offered, filed the following admission:

"The defendants W. O. Watson, W. N. Watson, Tom Tyler, and J. P. Biggers, each for himself, admits that the plaintiff has a good cause of action as set forth in his petition except so far as it may be defeated, in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial,"

— under rule 31 of the District Courts, and were given the right to open and close in introduction of testimony and argument.

The appellees, as a special defense to appellant's suit, alleged that there were collateral, supplemental, and subsequent agreements between appellant and appellee W. O. Watson, whereby the original contract between them was modified so that the same was rendered illegal and in violation of the anti-trust laws of the state of Texas, in that the territory in which appellee W. O. Watson should sell the goods purchased from appellant was restricted, the price which they were to be sold for was fixed by appellant, and W. O. Watson was required to devote all of his time and attention to selling such goods; the appellees, except W. O. Watson, alleging further that they knew nothing of said modifications of said contract and that the goods sold to W. O. Watson were sold under said contract as modified, and that said modifications and additions to said contract were made, adopted, and acquiesced in by appellant and appellee W. O. Watson before he began selling said goods and before his contract was accepted by appellant.

The appellant, by a supplemental petition, demurred to the defensive matters pleaded by appellees, and specially denied all of said matters; and further alleged that all of the letters, booklets, and literature which they sent to appellee W. O. Watson were not for the purpose and specially provided that they should not in anywise alter, modify, or change said contract, but should only be considered as suggestive, educational, and advisory, and specially plead the provision of the original written contract to the effect that the same could only be changed or modified by the written agreement of the parties thereto under the seal of appellant, and that no such modification of said contract was ever made.

There was testimony offered by appellees and appellant raising the issues as presented in appellees' answer. The cause was submitted to the jury on the three following special issues:

(1) Did the plaintiff and defendant W. O. Watson contract or agree that the territory in which the said W. O. Watson was to sell the goods of plaintiff was to be restricted?

(2) Did plaintiff and defendant W. O. Watson contract or agree that defendant W. O. Watson was to sell the goods shipped him by plaintiff at a price fixed or to be fixed by plaintiff?

(3) Did plaintiff and defendant W. O. Watson contract or agree that defendant W. O. Watson was to devote his entire time, skill, and attention to the business of selling goods purchased by defendant W. O. Watson from the plaintiff?

The jury answered each of said questions in the affirmative, and, on said verdict, the court rendered judgment that appellant take nothing and appellees recover of appellant their costs.

This case, in so far as the facts are concerned, is almost identical with the case of W. T. Rawleigh Co. v. Smith (Tex. Civ. App.) 231 S. W. 799; the only material difference in the two cases and the issues raised thereby being that in this case the appellees made the admission above set forth and were given the opening and closing in the introduction of testimony and in the argument. The appellant made no objection to the court giving the appellee said opening and closing.

Appellant presents six assignments of error, raising three main questions. First, that the original contract between appellant and appellees being in writing, the trial court erred in admitting any testimony to vary the terms of the written contract. Under the authorities of this state, the assignments presenting this issue should be overruled.

"While the general rule is well established that parol evidence is not admissible to restrict, enlarge, or contradict the terms of a written contract where there is no ambiguity in its meaning, yet, when facts are alleged showing the existence of fraud, accident, or mistake, or that the contract was entered into for the `furtherance of objects forbidden by law, whether it be by statute, or by an express...