Opinion
No. 4130.
March 16, 1932. Rehearing Denied March 31, 1932.
Appeal from District Court, Camp County; Walter G. Russell, Judge.
Suit by J. H. Mitchell and another, partners doing business under the name of Maddox Motor Company, against the Ford Motor Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
The suit was by appellees J. H. Mitchell and F. W. Maddox, partners doing business under the name of Maddox Motor Company, as plaintiffs, against the appellant Ford Motor Company, a Corporation, as defendant. This is the second appeal of the cause to this court. On the first appeal the judgment of the trial court was reversed, and the cause was remanded to the court below for a new trial 3 S.W.2d 911. On a writ of error granted by the Supreme Court, the Commission of Appeals, to whom it referred the case, disapproved rulings made by this court in disposing of it, but in an opinion rendered January 22, 1930, affirmed the judgment rendered here reversing and remanding the cause. 23 S.W.2d 333.
The suit was for damages for an alleged breach by appellant of a contract appellees alleged it had entered into with them January 2, 1924, whereby they acquired the right to handle Ford automobiles and parts in Pittsburg, Tex. It was alleged that the contract was in writing and contained a stipulation as follows: "17. This agreement shall continue in force and govern all transactions between the parties hereto until cancelled or terminated by the other party, but it is agreed that either party shall have the privilege, with or without cause, to cancel and annul this agreement at any time upon written notice by registered mail, or personal delivery of notice to the other party, and such cancellation shall also operate as a cancellation of all products of the (Ford) Company which may have been received by the Company from the dealer (appellees) prior to the date when such cancellation (notice?) is served." It was alleged that the part of the written contract just set out above was on sufficient consideration so modified by an oral contract as to render inoperative the provision therein that the parties to the agreement should have "the privilege (quoting) with or without cause to cancel and annul this agreement at any time upon written notice * * * to the other party," and to provide instead that such contract should continue in force for a period of six years without right in either party to cancel same "without just or legal cause." It appeared in testimony heard at the trial that the negotiations resulting in the alleged oral contract were between appellees and one K. W. Brown acting for appellant. It appeared, further, that the consideration to appellant for its agreeing to the modification claimed was the undertaking of appellees to acquire land for the purpose and construct thereon a building in which to carry on their business as dealers in Ford automobiles and parts. It appeared, further, that appellant undertook to cancel the contract in April, 1925, and thereafter refused to comply with its terms. In response to special issues submitted to them the jury found as follows: (1) That about March 10, 1924, said Brown and appellee Maddox entered into an oral contract whereby Brown, assuming to act for appellant, and Maddox, acting for appellees, agreed that the written contract between appellant and appellees entered into January 2, 1924, "was (quoting) modified so as to eliminate therefrom all provisions therein relating to the cancellation thereof by either party without legal cause, and providing that such contract as so modified should remain in force for a definite period of six years from date thereof." (2) That the consideration to appellant for said agreement was that appellees would purchase a lot in Pittsburg and construct thereon "a new building for the sale (quoting) of the defendant's products, suitable for such purpose, and in keeping with plans and specifications to be furnished therefor by the defendant." (3) That K. W. Brown was authorized by appellant to make the oral agreement in question. (4) That said Brown had apparent authority to make such oral agreement. (5) That appellees constructed a building in compliance with their oral agreement to do so. (6) That but for such agreement appellees would not have constructed the building. The appeal is from a judgment in favor of appellees against appellant for $24,000, the amount of damages the jury found the former were entitled to recover.
Leon C. Huvelle and Allen Allen, all of Dallas, for appellant.
King, Mahaffey, Wheeler Bryson, of Texarkana, and Jones Jones, of Marshall, for appellee.
The transcript on this appeal contains 281 typewritten pages, the statement of facts 350 typewritten pages, appellant's brief 215 printed pages, and appellees' brief 187 typewritten pages. Several of the 100 assignments of error in appellant's brief required more than 6 pages each in which to state them, and setting out the 100 covered 65 pages of the brief. It is not practicable, without devoting more time and space than the importance of the questions they present deserve, to even state all the contentions made by the assignments and propositions under them. In that state of the case, this court, in disposing of the appeal, will not undertake to do more than refer to and determine what appear to be the more important contentions in appellant's brief.
Appellees contended that the written contract of January 2, 1924, was modified by a valid oral contract entered into March 10, 1924. In their first amended petition filed March 25, 1926, they alleged that the effect of the oral agreement was to continue the written contract in force for a period of six years from said March 10, 1924, and to deprive appellant of the right conferred on it by said paragraph 17 of said contract of January 2, 1924, to cancel same, even for cause. In their second amended petition filed September 23, 1930, appellees alleged that said oral agreement was not that appellant should not have a right to cancel the contract at all, but that it should not have such right "without just or legal cause." Because of the difference indicated in the allegations in the two amended petitions, appellant asserts that a new and different cause of action was stated in the second one of the two, and that it appeared such new cause of action was barred by the two years' statute of limitations (Rev.St. 1925. art. 5526). The contention is overruled. The suit, as appears in each of the petitions, was on the same contract, that is, the written contract of January 2, 1924, as modified orally March 10, 1924. The contract covered one and the same transaction. If its terms were erroneously stated in the first amended petition, appellees had a right by another amended petition to state same correctly and in doing so was restating the same cause of action and not stating a new one within the meaning of the rule applicable. Fuller v. El Paso Times Co. (Tex.Com.App.) 236 S.W. 455; Pullman Co. v. Ry. Co. (Tex.Civ.App.) 267 S.W. 1045; Elmo v. James (Tex.Civ.App.) 282 S.W. 835; Green v. Loftus (Tex.Civ.App.) 132 S.W. 502; Western Union Tel. Co. v. Smith (Tex.Civ.App.) 146 S.W. 332.
It is insisted on this appeal, as it was on the former appeal, that the competent evidence before the court did not warrant a finding that K. W. Brown, as appellant's agent, was authorized to bind it by the oral contract in question. As to that, we think it is sufficient to say the evidence at the last trial was not materially different from that heard at the other trial, which the Commission of Appeals held was sufficient. Therefore the contention is overruled, as is also the further contention that the evidence did not warrant the finding that the written contract was modified by an oral agreement as claimed by appellees. The evidence relative to that phase of the case was conflicting, but if, as the Commission of Appeals held and as we now hold, it was sufficient to warrant a finding that K. W. Brown as appellant's agent was authorized to act for it as the evidence showed he did, it ought to be held, we think, to have been sufficient to support a finding of liability on appellant's part to appellees.
In response to a special issue submitted to them at appellees' request, the jury found that they (appellees) did not construct a building in which to carry on their business "in compliance (quoting) with clause 3 of the written contract between the plaintiffs and the defendant." In its brief appellant insists that the finding, establishing as a fact, as they say it did, that appellees first breached the contract, required the judgment to be in its favor, and that it was "fundamental error" for the court, instead, to render judgment in favor of appellees. In the clause 3 referred to it was stipulated that appellees should "maintain a place of business and properly equipped sales room and service station, prominently located and acceptable to the Company," but nothing was said therein about constructing a building.
Assignments of error appellant is entitled to have considered not disposed of by what has been said nor by what was said by the Commission of Appeals on the former appeal are believed to be without merit and are overruled.
The judgment is affirmed.