228 S.W. 599 (Tex.Civ.App. 1921), 8489, Whitehouse Bros. v. S.H. Abbott & Son

Docket Nº:8489.
Citation:228 S.W. 599
Opinion Judge:TALBOT, J.
Attorney:Mort W. Muse and Jas. M. Muse, both of McKinney, for appellants. John Doyle, of McKinney, for appellees.
Case Date:February 12, 1921
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas

Page 599

228 S.W. 599 (Tex.Civ.App. 1921)




No. 8489.

Court of Civil Appeals of Texas, Dallas.

February 12, 1921

Rehearing Denied March 12, 1921.

Appeal from Collin County Court; R. L. Moulden, Judge.

Action by Whitehouse Bros. against S. H. Abbott & Son. From a judgment for defendants, plaintiffs appeal. Affirmed.

Mort W. Muse and Jas. M. Muse, both of McKinney, for appellants.

John Doyle, of McKinney, for appellees.


The appellants sued the appellees to recover the value of three cluster rings, amounting, including 3 per cent. war tax, to $314.15. The petition alleges, in substance, that the appellants sent to appellees, at the latter's request, "on memorandum" a selection of bar pins and rings of the value $667 by Wells Fargo Express, for the "purpose of examination and sale"; that said merchandise was to remain the property of the appellants, and, if not returned to appellants, to be paid for at list price; that afterwards appellees returned to appellants by parcel post, insuring the same for $25, all of said merchandise except three cluster rings of the aggregate value of $314.15, including the war tax of 3 per cent. Appellants allege that the merchandise "were loaned" to appellees by the appellants for the purpose of purchasing the same outright or when making a sale to remit the list price as shown by said memorandum. Appellants also allege that the three cluster rings have never been returned to them, and have not been paid for, and they sue for their conversion and in the alternative for damages on account of the alleged negligence of the appellees in not properly handling, insuring, and returning the property. Appellants further allege that the appellees are estopped to deny that the goods were worth their list value, and that they were lost because appellees made claim, by affidavit, on the United States post office authorities, in which they swore to said value, and that said goods were lost, and then collected the $25 for which they had insured them. "Defendants answered by general demurrer, general denial, and pleaded that plaintiffs shipped said goods to defendants for the purpose and with the intention of having defendants sell said goods if possible, and remit to plaintiffs the price of said goods to plaintiffs; that defendant, being unable to sell said goods, placed them in a package addressed to plaintiffs with the proper postage thereon, and deposited them in the United States mail; that plaintiffs had informed defendants that they had all their goods insured, and did not instruct defendants how said goods should be returned, and that defendants, believing that the United States mails were a safe and convenient way to return said goods, so returned them." By supplemental petition the appellees specially excepted to the appellants' plea of estoppel, to the allegations that the goods were "loaned" to appellees, and pleaded a general denial, that they had, in returning the goods, insured them for $25, and that they had tendered to the appellants the $25 insurance collected by them, and that on refusal of the appellants to accept, the money was paid into the registry of the court. The case was tried before the court without a jury, and judgment rendered in favor of the appellants for the $25, which had been tendered to them and paid into the registry of the court by the appellees, and the costs of suit taxed against appellants. From this judgment the appellants appealed.

The only assignment of error is as follows:

"The court erred in rendering judgment for the defendants under the theory that said contract was a bailment contract, as the goods were sent at the special instance and request of the defendant, upon memorandum showing the terms of the contract as to the price of

Page 600

different articles, and was sent by Wells Fargo Express to the defendants. Said memorandum in addition to showing the price stated in plain words and figures the following: 'Our goods are covered by insurance, value all packages $50.00 when returned by express.' The defendants under said contract were not gratuitous bailees or bailees for hire, but were bailees for their own benefit, if bailees at all, and their duty was to take the utmost care of plaintiffs' property while in their possession. And, further, the defendants were in duty bound to comply with all the terms of said contract, expressed or implied, and a failure to so comply, unless prevented by an act of God or other event making compliance impossible, and the goods were lost by any failure on their part, then the defendants became liable to the plaintiffs for the value of the goods so lost or the price agreed upon."

The following propositions are advanced:

(1) "The contact in question was a contract of 'sale and return,' and no defense could be made other than that the goods were paid for or returned." (2) "A bailee is liable for damages resulting from failure to place a proper valuation on...

To continue reading