Welsh v. Morris

• Decision Date: 22 May 1891
• Citation: 16 S.W. 744
• Court: Texas Supreme Court
• Parties: WELSH v. MORRIS.

16 S.W. 744

WELSH v. MORRIS.

Supreme Court of Texas.

May 22, 1891.

Appeal from district court, Grayson county; H. O. HEAD, Judge.

Standifer & Moseley, for appellant. W. W. Wilkins and Maughs & Peck, for appellee.

HENRY, J.

This suit was brought by the appellee against M. Welsh, R. W. Welsh, and N. W. Welsh, to recover damages, and to enjoin them from conducting business as undertakers in the city of Denison. The cause was tried without a jury, and a judgment was rendered in favor of the defendants R. W. Welsh and N. W. Welsh, and for the plaintiff against the defendant M. Welsh for the sum of $250, and enjoining him from engaging in the business of an undertaker in the said city while the plaintiff should there continue to conduct such business. Plaintiff's cause of action was based upon the following written agreement: "Denison City, Texas, March 13th, 1885 To all whom it may concern: We have this day bargained and sold to S. B. Morris our entire stock of undertaker's goods for value received, including insurance and rent to April 1st, 1885, and we further agree not to start the undertaking business in Denison city, Texas, so long as the said S. B. Morris is in the business. WELSH BROS." The judge filed conclusions of law and fact, which were excepted to by the defendant M. Welsh. The record contains a statement of facts, from which it appears, in addition to the above agreement, that plaintiff commenced business in the city of Denison as an undertaker on the 13th day of March, 1885, he having then purchased the stock of Welsh Bros., a firm composed of M. Welsh and R. W. Welsh, as shown by said written agreement; that, after he sold out, defendant M. Welsh moved to Sedalia, Mo., where he engaged in the same business until March, 1886, at which time he returned to Denison, bringing with him a third brother, N. W. Welsh, and that the said M. and N. W. Welsh had opened an undertaking business in said city under the firm name of Welsh Bros.; that at first M. Welsh was a partner in said business, but shortly after this suit was brought he sold his interest in it to his brother N. W. Welsh, and about that time the firm name was changed from "Welsh Bros." to "N. W. Welsh;" that afterwards M. Welsh conducted a small furniture business in the house in which his brother was conducting the undertaking business, and assisted his brother in conducting the undertaking business. Plaintiff testified that he believed "that the Welshes had done about $3,000 worth of business since they reopened in Denison; that he (plaintiff) had cleared about $1,200.00 or $1,500.00 out of his business the first year after buying out Welsh Bros., and had cleared about the same amount yearly after the Welshes resumed business in said city; that he thought M. and N. W. Welsh had cleared about $1,500.00 after they resumed business."

The defendants objected to the admission of the testimony of plaintiff, without regard to the value of the business transacted by the defendants, upon the ground that it was not "a proper measure of the damage sustained by plaintiff." We think the evidence was properly admitted. The facts stated were circumstances tending to show that plaintiff was damaged, and the amount of his damage....