Apache Cotton Oil & Mfg. Co. v. Watkins & Kelly

• Decision Date: 29 November 1916
• Docket Number: (No. 1067.)
• Citation: Apache Cotton Oil & Mfg. Co. v. Watkins & Kelly, 189 S.W. 1083 (Tex. App. 1916)
• Parties: APACHE COTTON OIL & MFG. CO. v. WATKINS & KELLY et al.
• Court: Texas Court of Appeals

189 S.W. 1083

APACHE COTTON OIL & MFG. CO. v.WATKINS & KELLY et al.

(No. 1067.)

Court of Civil Appeals of Texas. Amarillo.

November 29, 1916.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Action by the Apache Cotton Oil & Manufacturing Company against M. P. Watkins and Ernest Kelly, as the partnership of Watkins & Kelly, and E. A. Patterson, wherein Watkins & Kelly filed a cross-complaint.Judgment on directed verdict for defendants on the original action, and for plaintiff on the cross-action, and plaintiff appeals.Reversed and remanded.

Bond, Melton & Melton, of Chickasha, Okl., and C. C. Small and J. C. Mahan, both of Wellington, for appellant.J. L. Lackey, of Claude, and R. H. Cocke, Jr., of Wellington, for appellees.

HALL, J.

Appellant company sued M. P. Watkins and Ernest Kelly, a partnership, and E. A. Patterson, alleging in substance that on the 13th day of December, 1915, plaintiff purchased from the defendants three cars of cotton seed, two of them at $43 a ton, f. o. b. Plaintiff's mill in Chickasha, Okl., and the third car at $39 per ton, f. o. b. cars at Dodsonville; that the seed so purchased arrived in Chickasha December 21, 1915, but prior to its arrival plaintiff paid drafts drawn by Watkins & Kelly for the amount due under the contract, and upon inspection after the delivery of the seed found they were not clean, sound, and dry, nor free from dirt, trash, and bolls, and were not therefore in accordance with the contract of purchase; that plaintiff immediately advised Patterson and Watkins & Kelly of the condition of the seed and requested advice as to the disposition thereof; failing to receive any advice, plaintiff unloaded the same for preservation, had them appraised, and sold all of the seed to the best advantage and for the best market price obtainable; that by reason of the failure of defendants to advise plaintiff as to the disposition of the seed demurrage charges had been assessed against the shipment in the sum of $42, which plaintiff had paid.Plaintiff prayed for judgment for the sum of $42 demurrage, the difference in the value of the seed, amounting to $878.32, and for protest fees, amounting to $6.06.

Watkins & Kelly answered by general and special exception, general denial, and specially that they sold the seed to Patterson, and that plaintiff refused to permit them to examine the seed, and by cross-action alleged as follows:

"And by way of cross-action these defendants aver that, when plaintiff made, published, and promulgated the allegations in its petition, plaintiff contracted with these defendants for a certain kind and quality of seed, and that the seed shipped by defendants were different in kind and quality from those called for in the contract, and were inferior to the kind called for in its contract with defendants, and charged that these defendants failed to comply with their contract of purchase and shipped to plaintiff inferior and damaged seed instead of seed which they contracted and agreed to ship; that they thereby charge and hold out to the world that these defendants are not honest and cannot be trusted to fulfill their contracts; that they will not stand by their contracts, and therefore cannot be trusted.

"These defendants allege that, when plaintiff made, published, and promulgated that charge, it well knew that it had made no contract in regard to said cotton seed with these defendants at all, and well knew that said allegations were false and were not made in good faith, but were made for the purpose and sole and only purpose of annoying, humiliating, and injuring these defendants, and for the purpose of wrongfully and fraudulently dragging their names into a lawsuit and to publish to the world that they are not honest business, and to place them in such position that by reason thereof they cannot sell and dispose of their cotton seed, and thereby keep them from buying cotton seed for sale and to deprive them from pursuing their business as cotton seed buyers and ginmen, and that by so doing plaintiff has damaged these defendants in the sum of $10,000, which they allege is due them as injury to their good names, and for expenses necessary to defend themselves in said lawsuit so wrongfully brought."

In addition to $10,000 damages the prayer is for damages for expenses of litigation.

The court sustained the general and several of the special demurrers to plaintiff's original petition, and on the 26th day of April plaintiff filed its amended petition, which is in effect identical with the original petition, except that it is alleged that the defendant Patterson in all things acted as the agent of the defendants Watkins & Kelly.The court the sustained a general demurrer to the amended petition.

After answer filed the plaintiff moved for a postponement, which was overruled.By motion plaintiff then asked to be permitted to enter a nonsuit.This motion was resisted by the defendants and overruled by the court; whereupon plaintiff filed its first supplemental petition, excepting generally to the entire answer and specially to the paragraphs of the answer copied above.

Defendant Patterson answered, admitting that he sold the seed to plaintiff at the price mentioned in plaintiff's petition and under the conditions therein stated, and that he negotiated the sale as the agent of the defendants Watkins & Kelly, guaranteeing all of the seed to be sound, dry, free from dirt, trash, and bolls.

The case was tried before a jury, and, after all of the testimony had been offered, the court instructed the jury to return a verdict in favor of the defendants, Watkins & Kelly and E. A. Patterson, and to find for the plaintiff upon the cross-action of Watkins & Kelly.Verdict was returned and judgment entered accordingly.

The first assignment is based upon the action of the court in overruling the plaintiff's motion for a postponement of the trial.It appears in the motion that Adrian Melton, of the law firm of Bond, Melton & Melton, who resided in Oklahoma, had exclusive control and management of the cause since and long prior to the filing of the suit; that no other member of the firm was familiar with it or had anything whatever to do with the prosecution thereof; that one member of the firm was in Washington City, and had been for some time; that the other member was engaged at the time the motion was filed in the argument of cases before the Supreme Court of Oklahoma; that Adrian Melton, the member of said firm who had handled the case, was in attendance upon the trial of a case at McAlester, Okl., which had been set long prior to the setting of this case in the district court at Wellington; that Melton was unable to obtain other counsel to try his said case at McAlester, which had been pending for more than two years, and that he could not obtain a continuance of said cause and could not reach Wellington, Tex., from McAlester, Okl., before the 27th day of April; that Orin Ashton, the local manager of the Apache Cotton Oil & Manufacturing Company was the one person connected with plaintiff who was familiar with the transactions out of which this lawsuit had arisen; that it was impossible to try the same without his testimony; that the facts to which he would testify could not be proved by any other witness; that he left the city of Chickasha on April 18th and could not return until after the...