American Maid Flour Mills v. Lucia
| Decision Date | 27 April 1926 |
| Docket Number | (No. 8843.) |
| Citation | 285 S.W. 641 |
| Parties | AMERICAN MAID FLOUR MILLS v. LUCIA. |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; Ben F. Wilson, Judge.
Suit by V. Lucia against the American Maid Flour Mills. Judgment for plaintiff, and defendant appeals. Reversed and rendered.
B. F. Louis and A. G. Haigh, both of Houston, for appellant.
Ward & Ward, of Houston, for appellee.
This suit, as shown by plaintiff's second amended petition, was one brought by V. Lucia against American Maid Flour Mills, a corporation, successor to Houston Mill & Elevator Company, to recover the sum of $950 as damages alleged to have been suffered by plaintiff by reason of a breach of a contract alleged to have been entered into between the Houston Mill & Elevator Company, the predecessor of American Maid Flour Mills, and himself, whereby the said first named company sold and agreed to deliver to V. Lucia 500 barrels of flour. It was alleged by plaintiff that the party sued was formerly incorporated under the name of Houston Mill & Elevator Company, and that after having made the sale of the flour to plaintiff, to wit, on the 27th day of August, 1923, it, by amendment to its charter, changed its name to American Maid Flour Mills, and that the contract, though signed "Houston Mill & Elevator Company," was in fact the contract of the American Maid Flour Mills.
The answer, though styled "V. Lucia v. Houston Mill & Elevator Company," is in fact the answer of the American Maid Flour Mills, as shown by the special plea set out in said answer, whereby it is averred that it was shown by plaintiff's original petition that plaintiff's cause of action is against Houston Mill & Elevator Company and not against defendant, and therefore defendant should be discharged with its costs.
Answering further, defendant denied generally all the allegations of the plaintiff. It specially denied that the instrument relied upon as the basis of this suit was a contract of sale, and alleged that such instrument was intended only as, and in fact was, an order of the plaintiff to be submitted to defendant which was to be effective as a contract between the parties only upon approval by defendant, as shown by the following recital therein, as follows: "The contract is subject to confirmation by the seller at ____." Defendant specially denied that it had ever approved said order, and averred that it disapproved the same as soon as its attention was called thereto, and that such disapproval was made known to plaintiff.
The cause was tried before a jury upon special issues. The answers of the jury are not shown by the record, but, as appellant has set out what it claims such answers were, and as no objection is made thereto by appellee, we shall assume them to be correct.
In answering the issues submitted, the jury found: First, that there was an order given by plaintiff to defendant for 500 barrels of flour at a price of $5.10 per barrel. Second, that defendant notified plaintiff on the 27th day of September, 1923, that it would not deliver the flour ordered. Third, that the market value of flour per barrel in Houston, Tex., on the 27th day of September, 1923, was $6.20.
The court submitted to the jury the question as to whether defendant confirmed the order for the flour, and in connection therewith gave the following instruction:
"In this connection you are charged that `confirmation' may be by act of the defendant, or by its receiving the order and not taking action upon it within a reasonable time."
The jury, to such question, answered that defendant had confirmed said order.
Upon the answers of the jury to the issues submitted, the court rendered judgment for V. Lucia against the American Maid Flour Mills for the sum of $800. The flour mills has appealed.
As we view this case as made by the pleading and evidence, the only question presented by this appeal necessary to be decided is, was the contract sued on a contract of appellant, binding it to deliver the flour described therein? If it was not such contract, the judgment of the trial court should be reversed and judgment here rendered for appellant.
It is contended by appellant that there was no evidence to show that the contract sued upon was its contract, but, to the contrary, the undisputed evidence shows that the contract was not its contract; that it is shown on the face of the instrument sued on that it was not to become the contract of appellant unless and until confirmed by it; and that the undisputed evidence shows that appellant at no time confirmed the contract; and that it did, on the 27th day of September, 1923, shortly after its attention had been called to its existence, notify appellee that it disaffirmed the contract.
We think these contentions should be sustained. It is shown that appellant had in its employ one Charles J. Pucio, whose duty it was to solicit orders for appellant. He was furnished blank forms upon which he was to take such orders, and which, when filled out showing the goods ordered by the customer, were to be signed by the customer and by the solicitor in triplicate, one to be left with the customer and the other two to be sent to appellant. On the 27th day of August, 1923, Solicitor Pucio received from appellee Lucia an order, in manner and form as above indicated, for 500 barrels of flour. On the face of said order it was stated that the same was taken subject to the terms and conditions stated therein, and those printed on the back thereof, which were to be binding on both parties to the contract and which could not be modified except by the written consent of both parties, and that no verbal conditions, warrants, or modifications were to be valid. On the face of this order, immediately above the signature of appellee, Lucia, there was the following provision: "This contract is subject to confirmation by the seller at ____."
Pucio, in effect, testified that he had no authority to make a binding contract for the sale of flour, in that he stated that when he took Lucia's order he explained to Lucia that it was subject to confirmation by the proper officers of the mill, and called his attention to the recital that "this contract is subject to confirmation by the seller." Indeed, the order itself shows on its face that Pucio had no authority to make a binding contract for the sale of the flour, and that the order taken was not to become a contract of the parties until confirmed by the Flour Mills.
Appellee Lucia makes no contention that the clause in the tentative contract, to the...
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