W. T. Rawleigh Medical Co. v. Mayberry

• Decision Date: 17 February 1917
• Docket Number: (No. 8527.)
• Citation: 193 S.W. 199
• Parties: W. T. RAWLEIGH MEDICAL CO. v. MAYBERRY et al.
• Court: Texas Court of Appeals

193 S.W. 199

W. T. RAWLEIGH MEDICAL CO. v. MAYBERRY et al.

(No. 8527.)

Court of Civil Appeals of Texas. Ft. Worth.

February 17, 1917.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Action by the W. T. Rawleigh Medical Company against W. W. Mayberry and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. R. Stubblefield, of Eastland, for appellant. Earl Conner, of Eastland, for appellees.

BUCK, J.

This is an appeal from the district court of Eastland county, wherein the plaintiff in error sued W. W. Mayberry, as principal, and J. T. Brown and A. B. Reed, as guarantors, for balance due for goods, wares, and merchandise, alleged to have been sold to Mayberry by plaintiff in error, in the sum of $646.38. The action was dismissed as to Reed, not served. Defendant Brown's exceptions 2, 3, 4, 5, and 6 to plaintiff's petition were sustained, and, plaintiff declining to amend, the cause was dismissed as to Mayberry and Brown. Plaintiff, by writ of error, appeals.

Defendant Mayberry filed no answer to plaintiff's suit in the trial court, nor is he represented in this court by brief or otherwise, though citation in error was served upon him.

The contract between plaintiff and defendants, upon which plaintiff's claim of the defendants' liability rests, was pleaded by plaintiff, and is, in substance and effect, the same character of contract shown in the case of Armstrong v. Rawleigh Medical Co., reported in 178 S. W. 582. In that case the Supreme Court dismissed the application for writ of error, for want of jurisdiction, but we are not advised as to the ground upon which the Supreme Court predicated its conclusion that it was without jurisdiction, as in the cited case, as well as in the instant case, the cause originated in the district court. While we should have been pleased to have had the Supreme Court pass upon the questions presented in the cited case, yet in the absence of any authoritative expressions to the contrary from our Supreme Court, uttered since the rendition of our judgment in the cited case, we feel disposed to adhere to the conclusions therein expressed. This frame of mind is strengthened by the fact that the conclusions reached by us heretofore have met with the approval of the Court of Appeals for the Third District, in Rawleigh Medical Co. v. Fitzpatrick, 184 S. W. 549, and with the approval of the Court of Appeals for the Eighth District in Rawleigh Medical Co. v. Gunn, 186 S. W. 385. See, also, Pictorial Review Co. v. Pate Bros., 185 S. W. 309, by this court. It will also be noted that a writ of error was refused (170 S. W. xviii) in Watkins Med. Co. v. Johnson, cited by us in the Armstrong Case, supra. Hence we conclude that no useful purpose could be subserved by us in reviewing again the authorities, as is requested by plaintiff in error.

Therefore we conclude that the trial court did not err in sustaining the exceptions of defendants leveled at those portions of the contract between the parties plaintiff and defendant, made a part of plaintiff's petition, which provided that defendant Mayberry, principal obligor, should sell no other goods than those sold to him by plaintiff, to sell all such goods at prices indicated by plaintiff, and to have no other business or employment. Article 7796, Vernon's Sayles' Texas Civil Statutes; Watkins Med. Co. v. Johnson, 162 S. W. 394; Armstrong v. Rawleigh Med. Co., 178 S. W. 582; Pictorial Review Co. v. Pate Bros., 185 S. W. 309; Rawleigh Med. Co. v. Fitzpatrick, 184 S. W. 549; Rawleigh Med. Co. v. Gunn, 186 S. W. 385. It should be further noted that the contract...