Auerbach v. Lewkowitz

• Decision Date: 17 January 1924
• Docket Number: (No. 1554.)
• Citation: 258 S.W. 583
• Parties: AUERBACH et al. v. LEWKOWITZ.
• Court: Texas Court of Appeals

258 S.W. 583

AUERBACH et al. v. LEWKOWITZ.

(No. 1554.)

Court of Civil Appeals of Texas. El Paso.

January 17, 1924.

Rehearing Denied February 28, 1924.

Appeal from El Paso County Court, at Law; J. M. Deaver, Judge.

Action by Leopold Auerbach and others against Louis Lewkowitz. Judgment for defendant, and plaintiffs appeal. Reversed and rendered.

Loomis & Kirkland, of El Paso, for appellants.

John T. Hill, of El Paso, for appellee.

HARPER, C. J.

Appellants brought this suit against appellee for $480, alleged value of candy shipped to and accepted by the latter under contract in writing at $1 per carton. Defendant pleaded the contract which fixed 75 cents per carton, and also tender of the amount due under the contract, and that this was the fair and reasonable value of the goods received. The case was submitted to a jury upon general charge, and the verdict and judgment was for $352.80, the amount tendered, with interest from date of judgment. Appealed.

Appellants contend that under the undisputed evidence judgment should be rendered for the amount sued for, because that whilst the contract signed fixed a price of 75 cents per carton, it contained the following stipulation:

"Owing to labor conditions and general scarcity of materials all goods are sold at our price quotations prevailing on date of shipments."

That the undisputed evidence is that $1 per carton was the prevailing price quoted and mailed to defendants prior to the date of shipment.

We think this proposition is well taken. The office manager of appellants so testified, and it is undisputed, and there is no evidence that he had any interest in the result of the suit, at least such as to justify the jury in discarding his testimony.

The counter proposition is that the change of prices was conditioned upon "increase in the price of labor and material," and that there is testimony to the effect that there had been no increase in the price of either between the date of the contract and that of shipment.

The stipulation in the contract does admit of that construction, but clearly is a statement of present labor conditions and scarcity of materials, etc., at the date of the contract, and is a reservation of the right to raise the price named in the contract by subsequent quotations.

The trial court should have instructed a verdict for plaintiff for the full amount sued for, with interest thereon from January 1, 1920, until paid.

Reversed and rendered.

On Rehearing.

HIGGINS, J.

The candy was sold under a written contract dated August 12, 1919. It contained these provisions:

"Important: Note conditions of sale.

"All orders placed with our representatives, are subject to the firm's acceptance. Owing to labor conditions and general scarcity of material all goods are sold at our price quotations prevailing on date of shipment and dependent upon our ability to fill. For the same reasons we cannot accept cancellation of all or part of any order, unless it reaches us 15 days prior to date of shipment. To overcome the usual accumulation of orders listed for specified future shipping dates, we reserve the right to fill...