221 S.W. 1081 | Tex. Comm'n App. | 1920
defendant in error, brought this suit to recover of plaintiffs in error upon certain promissory notes, which plaintiff in error Houston Transfer & Carriage Company, a corporation, by its president, W. I. Ford, had executed to O. C. Williams, the deceased husband of defendant in error; the notes having been indorsed by R. R. Eagan and plaintiffs in error W. I. Ford, George A. Hill, and N. E. Hildebrand.
The notes were executed as part of the consideration for the sale by C. C. Williams to the corporation of a transfer business in the city of Houston. Plaintiffs in error, contended that the consideration had failed, in that C. C. Williams represented that the accounts due said business, which he transferred to it, were secured by goods deposited in his warehouse, but that said goods were not in fact in said warehouse, and, further, that the bill of sale — which constituted the agreement between the parties — contained a good will covenant, which had been violated by defendant in error leasing the premises at 1604 Oak street to competitors and permitting the lessors to use the telephone number at the leased premises.
In support of the contention that the goods securing the transferred accounts were not in the warehouse, plaintiff in error introduced the testimony of George A. Hill, N. E. Hildebrand, and C. S. Davidson, former general manager of the company, which testimony was sufficient to raise the issue of failure of consideration. Upon motion of defendant in error, the testimony was stricken out, upon the ground that it was within the inhibition of article 3690, which forbids the testimony of a party to any transaction with a decedent in an action by executors, administrators, "heirs, or legal representatives, in which judgment may be rendered for or against them as such, unless called for by the opposite party.
The jury was instructed to return a verdict for the defendant in error, and judgment was rendered thereon. Upon appeal, the Qourt of Civil Appeals held the testimony inadmissible, as being in contravention of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, and affirmed the judgment. 201 S. W. 712.
Defendant in error alleged, and plaintiffs in error agreed, that C. O. Williams, deceased, left a written will, which had been duly probated, naming defendant in error as the sole legatee. It was also agreed that she was the only heir of 0. O. Williams, deceased.
No restraint of trade may rest upon inference; a stipulation is necessary. Cottrell v. Babcock Ptg. Press Mfg. Co., 54 Conn. 122, 6 Atl. 791. It was decided at an early date that a person who sells a good will is not prevented from leasing other property he may own in the neighborhood to another person to carry on the same business, provided, of course, that the only interest the lessor had in the venture was the leasing of the property. Bradford v. Peckham, 9 R. I. 250,
We recommend, therefore, that the judgments of the Court of Civil Appeals and of the district court be reversed, and the cause remanded for a new trial in accordance with the views herein expressed.
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