Memphis Cotton Hull & Fiber Co. v. Wilson Grain Co.

• Citation: 244 S.W. 1062
• Decision Date: 08 November 1922
• Docket Number: (No. 792.)
• Parties: MEMPHIS COTTON HULL & FIBER CO., Limited, v. WILSON GRAIN CO.
• Court: Court of Appeals of Texas

Page 1062

244 S.W. 1062

MEMPHIS COTTON HULL & FIBER CO., Limited, v. WILSON GRAIN CO.

(No. 792.)

Court of Civil Appeals of Texas. Beaumont.

November 8, 1922.

Rehearing Denied November 22, 1922.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Action by the Memphis Cotton Hull & Fiber Company, Limited, against the W. T. Wilson Grain Company. From an order sustaining defendant's demurrer, and special exceptions to the petition, plaintiff appeals. Reversed and remanded.

S. M. Adams, of Nacogdoches, and Garrison & Watson, of Houston, for appellant.

Harris & Harris, of Nacogdoches, and Mantooth & Collins, of Lufkin, for appellee.

HIGHTOWER, C. J.

The appellant, Memphis Cotton Hull & Fiber Company, Limited, a private corporation domiciled in the city of Memphis, state of Tennessee, filed this suit in the district court of Nacogdoches county, Tex., against the W. T. Wilson Grain Company, as defendant, to recover a money judgment in the sum of $2,485.50.

Defendant answered, and among other things interposed a general demurrer and several special exceptions. The general demurrer and some of the exceptions, which attack the petition on the ground that it appeared that the plaintiff was a foreign corporation and had not procured a permit to do business in Texas, were sustained, and the suit was ordered dismissed, from which order this appeal is prosecuted.

The allegations of fact made by plaintiff's several pleadings (original petition, first supplemental petition, and trial amendment) were, substantially, as follows:

That in December, 1917, plaintiff and defendant entered into a written contract in the city of Memphis, state of Tennessee, by the terms of which the plaintiff sold and defendant purchased 700 tons of lintless cotton seed, at an agreed price per ton (the agreed price being fully stated); that defendant, by the terms of the contract, was to give to plaintiff shipping instructions, designating the points in the state of Texas to which the cotton seed should be shipped; that 428.55 tons of the seed were shipped by plaintiff to defendant, as instructed by defendant, and payment by defendant made therefor; that as to the remaining 271.45 tons of seed, defendant never did, though requested to do so, give plaintiff shipping instructions, but that, on the contrary, defendant refused to do so, and refused to receive the remaining 271.45 tons of seed; that acting under the terms of the written contract for the sale and purchase of the seed, plaintiff, after notice to defendant that it would do so, sold the 271.45 tons in the city of Memphis, state of Tennessee, for the highest market price obtainable there at that time, which was $9.25 per ton, the difference between the aggregate amount received at such sale and the contract price to defendant being $2,485.50; that plaintiff made demand of defendant for such amount, which defendant refused to pay, to plaintiff's damage, etc.

Plaintiff further alleged that the original contract for the sale and purchase of the 700 tons of seed contains a provision to the effect that in the event any controversy should arise between the parties relative to the contract, such controversy should be submitted to the arbitration committee on cotton-seed products of the Texas Cotton-Seed Crushers' Association for arbitration and decision, and that such arbitration and decision should be binding upon the parties, and that such award and decision might be filed in any court of competent jurisdiction and the judgment of such court be entered thereon in accordance with such award. Plaintiff then alleged that the controversy had been duly submitted to arbitration, as provided for, and that the decision and award of the arbitrators was in favor of plaintiff and against defendant for the amount of $2,485.50, as claimed by plaintiff, and that such award was duly filed in the district court of Nacogdoches county, as provided by the contract between the parties, but that defendant still refused to pay to plaintiff the amount of such award, or any part thereof.

Plaintiff's prayer was for recovery on the award made by the arbitrators, and in the alternative for judgment in the sum of $2,485.50, as damages for defendant's breach of contract; such amount being the difference between the contract price of the 271.45 tons of seed and the price for which plaintiff sold the same on the market at Memphis, Tenn., under the terms of the original contract.

Plaintiff's pleadings further affirmatively showed that, while it is a Tennessee corporation, its business transactions are and have been wholly interstate, and that it is engaged in that character of business...