262 S.W.2d 205 (Tex.Civ.App.

Docket Nº:15442.
Citation:262 S.W.2d 205
Party Name:ROSS & SENSIBAUGH v. McLELLAND.
Case Date:October 02, 1953
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 205

262 S.W.2d 205 (Tex.Civ.App. —Fort Worth 1953)

ROSS & SENSIBAUGH

v.

McLELLAND.

No. 15442.

Court of Civil Appeals of Texas, Fort Worth

October 2, 1953

Rehearing Denied Nov. 20, 1953.

Page 206

Martin & Moore, Brewster, Pannell, Leeton & Dean, and Leo Brewster, Fort Worth, for appellant.

Samuels, Brown, Herman & Scott, and Ardell M. Young, Fort Worth, for appellee.

BOYD, Justice.

On February 23, 1951, appellee J. E. McLelland and appellants W. R. Ross and R. O. Sensibaugh entered into the following contract in writing:

'Cattle Contract

'State of Texas

'County of Tarrant

'This contract made and entered into this 23rd day of February, 1951 by and between J. E. McLelland of Freestone County, State of Texas, Party of the First Part, and W. R. Ross & R. O. Sensibaugh of Tarrant County, State of Texas, Party of the Second Part, witnesseth:

'That the first party has this day agreed to purchase, and the second party has this day agreed to sell and deliver unto the first party at shipping pens f. o. b. cars Benjamin, Texas, from this date to June 1,

Page 207

1951 the following described cattle at prices herein set-forth.

'Fifteen (1,500) hundred cattle, with calves thrown in, at $283.50 per head. These cattle are carrying circle brand behind left shoulder and located on the W. R. Ross Ranch in King County, Texas.

'Said cattle are to be delivered, if requested, by pasture. The Party of the First Part agrees to give the Party of the Second Part at least seven (7) days' notice of delivery.

'The cattle are carrying about the following old brands: 550 & 250 , 182 shash on nose, and the balance with various brands.

'The Party of the First Part is to pay in full for the first 500 head received, and as he receives the balance he is to deduct $40.00 per head until delivery is completed, where-in he will have received credit for the $40,000.00 deposit.

'In addition to the above cattle, there will be forty (40) baloney bulls, owners cut, at 25 cents per pound, with three percent shrink, to be weighed at the W. R. Ross Ranch in King County, Texas. Said bulls to be delivered July 1, 1951.

'All unmerchantable cattle such as lump jaws, bad eyes, cripples or defective cattle of any kind shall be taken out before the ten percent cut is made.

'Second party acknowledges receipt of $40,000.00 paid by first party, as partial payment on said cattle, balance to be paid upon delivery of the cattle at $283.50.

'In witness whereof said parties have set their hands in duplicate the day and year above written.

'Witnesses

(s) 'H. M. White

(s) 'J. E. McLelland

'Party of the First Part

(Buyer)

(s) 'Milo McNairy

(s) 'R. O. Sensibaugh

'W. R. Ross

'Party of the Second Part

(Seller)'

Appellee filed this suit for damages and for an accounting, alleging that appellants breached said contract, and that he was ready, able, and willing to perform.

Appellee pleaded that under said contract appellants agreed to sell and he agreed to buy '1,500 head of cows with the calves thrown in, less the unmerchantable cattle such as lump jaws, bad eyes, cripples or defective cattle, and less 10% which the plaintiff could cut out and refuse to accept with or without reason,' and in the alternative that the contract 'was ambiguous and the number of cattle the defendants agreed to sell and he agreed to purchase is indefinite and uncertain,' and that 'it was the true intention of the defendants and himself that not more than 1,500 head of cattle would be gathered and rounded up by the defendants; that the unmerchantable cattle would then be taken out of said group so gathered and rounded up, and after the unmerchantable cattle were taken out, the plaintiff would then be given a 10% cut, which meant that the plaintiff would actually be purchasing and paying for approximately 1,300 head of cows with the calves thrown in at $283.50 per head.' He prayed for a judgment for $32,068 for money he had on deposit with appellants as part payment for said cattle; for $1,000.76 trucking expense for trucks he procured to haul the cattle appellants refused to deliver; for $12,452.50, being the difference between the contract price and the market value of cows, and for $1,560, being the difference between the contract price and the market price of the 40 bulls, all of which he alleges appellants refused to deliver.

Parol evidence was offered and admitted over appellants' objections to sustain appellee's allegations as to the intention of the parties. At the conclusion of the evidence appellants moved for an instructed verdict, which motion was overruled, and the jury found as follows: That it was the intention of the parties that appellants would be able to round up only about 1,500 cows in fulfilling the contract; that appellee would be required to accept approximately 1,500 cows less the unmerchantable cattle and less the ten per cent cut; that he would be required to accept

Page 208

only one delivery out of each pasture; that on June 4, 1951, appellants refused to deliver to appellee the cows then rounded up, less the ten per cent cut, because of appellee's refusal to agree to return later and accept delivery of additional cattle to be rounded up, and refused to allow appellee credit on the cows then ready for delivery for the money he had on deposit with appellants; that appellants demanded a deposit of approximately $5,000 as security for the purchase of the 40 bulls; that on June 4, 1951, appellee 'had made arrangements whereby he was financially ready, able, and willing to pay for' the 112 Kenneth Cook cows and the other merchantable cows rounded up, less the ten per cent cut; that the market value of the Cook cows on June 4, 1951, was $212.50 per head, the market value of the other merchantable cows, less the ten per cent cut, which were then rounded up was $307.50 per head, the market value of the bulls on July 1, 1951, was $380.24 per head, and that appellee was then ready, able and willing to pay the contract price for the bulls, and that the trucking expense was $1,000.76. Judgment was rendered for appellee for $34,697.92, with interest at six per cent from June 4, 1951, on $32,067.56, and interest at six per cent on $2,630.36 from the date of the judgment.

Appellants'...

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