Western Cottage Piano & Organ Co. v. Anderson

• Decision Date: 21 March 1904
• Citation: 79 S.W. 516
• Parties: WESTERN COTTAGE PIANO & ORGAN CO. v. ANDERSON.
• Court: Texas Supreme Court

79 S.W. 516

WESTERN COTTAGE PIANO & ORGAN CO. v. ANDERSON.

Supreme Court of Texas.

March 21, 1904.

Error from Court of Civil Appeals of Second Supreme Judicial District.

Action by B. E. Anderson against the Western Cottage Piano & Organ Company. A judgment of the Court of Civil Appeals affirmed a judgment in favor of plaintiff (76 S. W. 945), and defendant brings error. Reversed.

F. M. Brantley, for plaintiff in error. W. R. Parker, for defendant in error.

BROWN, J.

From the opinion of the Court of Civil Appeals we make the following extract: "This suit was begun in the district court of Tarrant county on the 10th day of June, A. D. 1902, by appellee, B. E. Anderson, seeking to recover of appellant, the Western Cottage Piano & Organ Company, the sum of $465.65, alleged to have been advanced or paid by appellee in the discharge of an indebtedness in that sum of one John F. Mann and associates to appellant on the faith of certain alleged representations of the agent of appellant as to the solvency of said Mann and associates, and on the faith of the sufficiency of a certain chattel mortgage held by appellant against said Mann as security for said indebtedness. Appellee alleged that said alleged representations were knowingly, maliciously, and fraudulently false, tendered back said chattel mortgage, and asked for the recovery back of said sum, and also for the recovery of exemplary damages in the further sum of $1,000." The citation was issued to the sheriff or any constable of Tarrant county, and commanded him to summon the Western Cottage Piano & Organ Company, a corporation, and contained all the necessary elements of a citation, and was returned by the sheriff of Tarrant county with this indorsement, "Came to hand this the 19th day of June, 1902, and executed the 20th day of June, A. D. 1902, by delivering to John Alcott, state agent for the Western Cottage Piano & Organ Company, the within-named defendant, in person a true copy of this writ," which was signed by the sheriff of Tarrant county. The writ was returnable to the second Monday in September, 1902, which was the 8th day of that month, and on the 9th day of that month the defendant filed a motion to quash the return of the sheriff because it was not served upon any agent of the defendant authorized by the statute. Accompanying the motion was an affidavit from John Alcott, on whom the citation was served, stating, in effect, that he was at the time a resident citizen of Dallas county, Tex.; that he was not the local agent of the defendant in Tarrant county, nor in any county in the state; that the only relation or connection existing at the time, or at any time prior or subsequent thereto, between him and defendant, was that he was a salaried traveling employé of the defendant throughout the territory of the states of Louisiana, Arkansas, and Texas, whose only duties and powers were to check up and receive reports from the various dealers or merchants who were engaged in handling and selling musical instruments within said territory obtained from said defendant, receive payment for the same, and to receipt therefor on behalf of the defendant, and to receive and forward to defendant offers or contracts from persons offering to handle defendant's goods in said territory. The district court overruled the motion to quash, after which the defendant filed its answer, and trial was had, which resulted in a verdict and judgment for the plaintiff for $465.65 actual damages, and $500 exemplary damages.

The Court of Civil Appeals failed to...