Whitfield v. Terrell Compress Co.

• Decision Date: 21 March 1901
• Citation: 62 S.W. 116
• Parties: WHITFIELD v. TERRELL COMPRESS CO. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

62 S.W. 116

WHITFIELD v. TERRELL COMPRESS CO. et al.¹

Court of Civil Appeals of Texas.

March 21, 1901.

Appeal from district court, Kaufman county; J. E. Dillard, Judge.

Action by J. B. Whitfield against the Terrell Compress Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

William H. Allen, for appellant. Robt. L. Warren and Davis & Garnett, for appellees.

GARRETT, C. J.

This action was brought by the appellant, a public weigher, to recover of the appellees the penalty of five dollars a bale for cotton, which the appellant alleged the appellees had employed others than the public weigher to weigh. A demurrer to the petition was sustained, and judgment final was rendered against the appellant upon his declining to amend.

The material allegations of the petition are as follows: That plaintiff is and was at the dates hereinafter mentioned the duly elected, qualified, and acting public weigher for the town of Terrell, in said Kaufman county, Tex., and as such public weigher plaintiff tendered his services to the public of sale in said town for the purposes of weighing all cotton and other produce sold or offered for sale in said town, and was prepared with duly-qualified deputy public weighers to weigh all such cotton or other produce sold or offered for sale as aforesaid in said town of Terrell, Tex.; that the said defendants, acting together and in violation of the law, employed Thomas Goolsby, B. S. Nebhut, and Henry Stevenson, neither of whom was a public weigher, to weigh cotton sold or offered for sale in the said town of Terrell, Tex., and the said Thomas Goolsby, B. S. Nebhut, and Henry Stevenson, acting under the direct instruction, request, and employment of the said Terrell Compress Company and of M. A. Joy, and while this plaintiff was, as aforesaid, the duly elected and qualified and acting weigher, and was ready and willing to weigh all cotton sold or offered for sale in said town of Terrell, weighed in the said town of Terrell, from wagons, 3,237 bales of cotton sold and offered for sale in said town of Terrell, from the 5th day of September, 1899, up to and including the 28th day of September, 1899, as specified and itemized in schedule thereof hereto attached, and marked "Exhibit A" and made a part of this petition; that plaintiff cannot give the names of the owners of said cotton, but the defendants have memoranda in their office and in their possession by which they can furnish the names of said persons, and they are hereby notified to produce said memoranda upon the trial of said cause; that, in addition to the cotton weighed from the wagons above specified, this plaintiff is informed and believes, and so charges to be a fact, that the said defendants also employed Thomas Goolsby, B. S. Nebhut, and Henry Stevenson to weigh cotton shipped by railroad to the said town of Terrell from the points of Edgewood, Grand Saline, Wills Point, Nesquite, Forney, Crisp, Faulkner, Scurry, and Kaufman, and sold and offered for sale in the said town of Terrell, and under said employment said Goolsby, Nebhut, and Stevenson weighed said cotton in said town of Terrell; that plaintiff is not able to state the precise dates on which said cotton was shipped by railroad, and was unlawfully weighed as aforesaid by the said parties employed for that purpose by the said defendants, nor can he state the names of the persons for whom the said defendants had said cotton weighed, or the exact number of bales, but plaintiff is informed, and so charges, that said cotton amounted to 3,000 bales, and the said defendants have such information in their possession, and they have memoranda and books and papers, by which the precise number of bales and the dates of such weighing of cotton can be established and proven, and the said defendants are hereby notified and requested to produce upon the trial of this cause all such books, papers, and memoranda; that such weighing of cotton shipped by railroad extended from a period beginning August 1, 1899, and continued up to and including the 31st day of December, 1899, during all of which time the plaintiff was, as aforesaid, the duly elected, qualified, and acting public weigher, as above stated, and was ready and willing and was prepared to weigh in person, and by his regularly appointed and qualified deputies, all of said cotton; that at no time during said period were any of the said parties employed as aforesaid by the defendants as public weighers, and at no time had they, or any of them, any authority to weigh said cotton. Plaintiff charges that by reason of the premises the said defendants have unlawfully employed, as aforesaid, persons other than plaintiff or his deputies, to wit, the said Thomas Goolsby, Henry Stevenson, and B. S. Nebhut, to weigh cotton sold or offered for sale in the said town of Terrell, in Kaufman county, Tex., to the...