Queiroli v. Whitesides
206 S.W. 122
Tex. App.
1918
Check Treatment
MOURSUND, J. H. R.

Whitеsides sued Joe Queiroli and F. L. Gregory, partners doing business as Gregory-Queiroli Company, for damages for breach of a contract whereby said defendants sold Whitesides 10 cars of onions. On October 13, 1917, no answer having been filed, the court heard evidenсe and rendered a judgment in favor of plaintiff for 83,825.

[1,2] On November 27, 1917, at the same term of court, said Queiroli and the widow and children оf said Gregory filed a motion for a new trial, which was overruled on December 1, 1917. In this motion it was alleged that the defendants were cited to appear November 19, 1917, and that the Legislature changed the term of court by an act effective August 1, 1917 (Acts 35th Lеg. c. 91, § 2 [Vernon’s Ann. Civ. St. Supp. 1918, art. 39]), so that it began on October 8th instead of November 19th; that both defendants were nonresidents and shortly aftеr being served left the state; that they had no knowledge of the change of the time of holding court, and on November 4th Gregory, who had undertaken the management of the ease, wrote to an attorney at Lareao, inclosing the citation, and аsking that continuance be procured on account of the illness of said Gregory; that the attorney ascertained that judgment had already been rendered, and wired Gregory to that effect about November 7th, -whereupon ‍‌​‌‌​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌​​​​‌‌​​​​‌‌‍Gregory, although ill, went to Laredo, but was unable to attend to business, and died on November 21st. They further alleged their willingness to try the case during that term of the сourt. The act changing the term of court contained a clause making all process theretofore issued or servеd returnable to the term of court as therein fixed and validating all such process. In view of this provision, it appears that thе court was authorized to render the default judgment at the time it did so, but, while parties are presumed to know the law, our courts have excused the failure of parties to appear when it was caused by ignorance of the law on the part оf their attorneys, and have shown great liberality when a party appears by motion for new trial in time io try the case during the tеrm at which the judgment was rendered. We conclude that the allegations show a sufficient excuse for failure to appеar at the time the judgment was taken. Scottish Union Ins. Co. v. Tomkies & Co., 28 Tex. Civ. App. 157, 66 S. W. 1109; Dowell v. Winters, 20 Tex. 796; Springer v. Gillespie, 56 S. W. 369.

[3] However, even though a sufficient excuse was presented for not appearing at the time the judgment was rendered, the court was justified in refusing to grant a new" trial unless it was shown that defendants had a meritorious defense to the cause of action alleged by plaintiff.

The principal defense relied upon was that defendants were the agents of W. E. Shelton and J. N. Long in selling the onions; that ‍‌​‌‌​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌​​​​‌‌​​​​‌‌‍Shelton and Long were the owners of the onions, and had employed the defendants to sell the same, agreeing to pay them a com *123 mission for their services; that defendants did not hold themselves out as the owners or sellers, but fully advised plaintiff before any contract was made that they were merely the agents оf the grower and sellers. The theory of the ‍‌​‌‌​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌​​​​‌‌​​​​‌‌‍defendants was, as shown by their motion, that if they were in fact agents, and the buyer knew it, they wоuld not be personally liable.

[4] This theory leaves out of consideration the fact that, although persons are agents, thеy may contract so as to bind themselves, and when they do parol evidence cannot be received to show that, although by the plain terms of the contract they bound themselves, it was their intention to make a contract which should only bind their prinсipals.

[5] The contract was executed by Walker & Gerks, brokers, of Rochester, N. X., who state therein that the sale isi for account of Gregory-Queiroli Company, to H. R. White-sides, Louisville, Ky., and, in noting their ‍‌​‌‌​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌​​​​‌‌​​​​‌‌‍acceptance on the contract, said GregoryQueiroli Company, after its signature, is designated as “seller.” The onions sold are described as follows in the contract:

‘TO cars choice yellow Texas onions, аt 800 per crate, f. o. b. Pearsall, Texas. This is a sale of specific growing crop of W. E. Shelton, Pearsall, Texas, estimatеd at 50 carloads. In case of crop damage, sellers may reduce quantity pro rata without penalty.”

The name of J. N. Long does not appear in the contract. While the 10 cars of onions were described as part of Shelton’s crop, the contract contains no intimation that in making it Gregory-Queiroli Company acted as agents for Shelton, and the. reсital descriptive of the onions is perfectly consistent with the theory that the contract was one made for the ‍‌​‌‌​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌‌‌​‌​​‌‌​​‌‌​​​​‌‌​​​​‌‌‍purрose of binding Gregory-Queiroli Company personally, as it in fact purports to do throughout There is nothing in the contract to indicate that Gregory-Queiroli Company acted as brokers, and upon their letterheads they described themselves as “Car Lot Shippers and Distributors” of onions, cabbage, and lettuce, engaged in business at Laredo, Tex.

[6] We fail to see how the defendants could escape personal liability on such a contract, and, that being the case, it is immaterial that the buyer may have had information on which he could have elected to sue Shelton and Long.' In support of the conclusion that Grеgory-Queiroli Company made itself personally liable on the contract, we cite: Mechem on Agency, §§ 1170, 1176, 1408, 1422, 1423, 1424; Corpus Juris, vol. 2, р. 813, § 487; R. C. L. vol. 21, p. 847, § 27.

[7] The contract contained a clause to the effect that any dispute arising out of such contract is to be settled by arbitration, each party to name an arbitrator, and the two thus appointed to name a third in case of disagreement. Such a provision is contrary to public policy and will not oust the jurisdiction of the courts. Ruling Case Law, vol. i 2, p. 360; Corpus Juris, vol. 5, p. 42, §§ 68, 69; Elliott on Contracts, § 726. There is therefore no merit in the suggestion that the failure of the plaintiff to demand arbitration constitutes a defense to the suit.

The court did not err in concluding that defendants had no meritorious defense and in declining to grant a nеw trial. The motion should have been refused, and such was the effect of the order of the court, although the court sustained а demurrer to it and dismissed it, instead of adjudging that it was overruled.

The judgment is affirmed.

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