Wolforth v. A. J. Deer Co.

• Decision Date: 19 March 1927
• Docket Number: (No. 9897.)
• Citation: Wolforth v. A. J. Deer Co., 293 S.W. 590 (Tex. App. 1927)
• Parties: WOLFORTH et al. v. A. J. DEER CO., INC.
• Court: Texas Court of Appeals

Page 590

293 S.W. 590

WOLFORTH et al. v.A. J. DEER CO., INC.

(No. 9897.)

Court of Civil Appeals of Texas. Dallas.

March 19, 1927.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by the A. J. Deer Company, Inc., against C. A. Wolforth, in which plaintiff sued out a writ of sequestration, and defendant replevied the property, with C. L. Heath, W. F. Ohring, and another as sureties on his bond.From a judgment for plaintiff, defendant and the named sureties appeal.Reversed and remanded.

Carpenter & Rosenfield, of Dallas, for appellants.

Robert B. Seay, of Dallas, for appellee.

VAUGHAN, J.

Appellee, the A. J. Deer Company, Inc., a foreign corporation, sued C. A. Wolforth, one of the appellants, for possession of certain personal property or its value in the sum of $2,200.With the filing of the suit appellee sued out on the 11th day of January, 1925, and caused to be levied on the 18th day of January, 1925, a writ of sequestration on the property sued for.Appellant Wolforth on the 18th day of January, 1925, duly replevied said property, with C. L. Heath, W. F. Ohring, and E. N. Riley as sureties on his replevin bond, said Ohring and Heath, with Wolforth, being appellants herein.Appellant Wolforth answered, pleading (a) in abatement, (b)motion to quash writ of sequestration, and (c) cross-action alleging that appellee was indebted to him for commissions in the sum of $930.52 and storage charges in the sum of $475, on account of alleged transactions growing out of and incident to the appellee's cause of action.Appellee's general demurrer to appellant's first amended plea in abatement and his cross-action was sustained, and appellant's motion to quashappellee's affidavit and bond in sequestration overruled.Trial before the court without a jury resulted in judgment in favor of appellee against appellantC. A. Wolforth for the property sued for, and in the alternative for the sum of $1,545, the value of said property as found by the court, against appellants.From this judgment appeal was prosecuted by Wolforth, Ohring, and Heath.

Appellants' first proposition challenges the ruling of the court in sustaining appellee's general exception to the plea in abatement of appellant Wolforth.The following are the material facts alleged by said plea; viz., that appellee was a foreign corporation doing business in the state of Texas without a permit, in violation of its laws, in that he entered into a contract in writing under date of September 7, 1921, with appellee, whereby he became its agent to represent it in certain designated parts of Texas for the purpose of selling its goods, wares, and merchandise, for which he was to receive a certain stipulated commission; that acting through appellant, as such agent, appellee conducted business in the state of Texas, in this: That said appellant delivered the merchandise of appellee to its customers within the state of Texas; that appellee was obligated under its contract with its customers in Texas to keep its goods, wares, and merchandise sold in Texas in repair for one year; and that said appellant, acting as agent of appellee and for its sole benefit, did install, keep, and maintain the goods, wares, and merchandise of appellee so sold by it; that the property sued for was shipped to said appellant for the purpose of being sold and delivered in the state of Texas; that soon after the execution of said agency contract appellee shipped direct to appellant the personal property sued for, together with other merchandise, for the purpose of exhibition and sale by appellant; that said property sued for, together with other property received from appellee under said contract, was exhibited by said appellant and sold by him as such agent direct from the floor of the building in which located to various customers; that an initial payment was secured on each order out of which he retained his commission and forwarded the balance to appellee; that appellee paid the rent on the building, at 309N. Ervay street, from which the property sued for and other merchandise was exhibited for sale and sold; that said appellant, in so representing and acting for appellee, acted as its agent and was compelled, under his contract, to account to appellee for all sales; that although it was specially provided in said agency contract that all repairs of property so sold should be made at appellee's factory, subsequent thereto appellee instructed appellant, in writing, to make such repairs, as agent of appellee.

Appellee's general demurrer addressed to said plea in abatement required the trial court to assume the truth of the allegations of fact, and as viewed in that light to measure the legal sufficiency of same, viz., whether the facts alleged being true were sufficient to abate appellee's cause of action on the ground that it was a foreign corporation doing intrastate business within the state of Texas without a permit.We have concluded that the allegations were sufficient to show that appellee was not engaged in interstate but in intrastate business, out of which the cause of action grew upon which suit was instituted by it against appellant Wolforth.In support of this holding, we shall forego an analytical discussion, but shall be content to cite the following authorities: Barnhard Bros. & Spindler v. Morrison et al.(Tex. Civ. App.)87 S. W. 376;York Mfg. Co. v. Colley(Tex. Civ. App.)172 S. W. 206;Fay Fruit Co. v. McKinney, 103 Mo. App. 304, 77 S. W. 160;Browning v. City of Waycross, 233 U. S. 16, 34 S. Ct. 578, 58 L. Ed. 828;Thomas Mfg. Co. v. Knapp, 101 Minn. 432, 112 N. W. 989.Therefore we hold the court erred in sustaining said demurrer.

We hold there is no merit in the contention of appellee that, because of the relationship of principal and agent existing between it and appellant Wolforth, he was estopped from urging the inability of appellee to maintain its suit against him.Thomas Mfg. Co. v. Knapp, supra;Billingslea Grain Co. v. Howell(Tex. Civ. App.)205 S. W. 671;U. S. Express Co. v. Lucas, 36 Ind. 361;King Copper Co. et al. v. Dreher, 68 Colo. 554, 191 P. 98.

It is contended by appellants that the court erred in overruling motion to quash the writ of sequestration on the ground (a) that the affidavit did not state the value of each article of property sued...