Bell v. Mulkey

• Decision Date: 16 May 1928
• Docket Number: (No. 2998.)
• Citation: 7 S.W.2d 115
• Parties: BELL et al. v. MULKEY.
• Court: Texas Court of Appeals

7 S.W.2d 115

BELL et al. v. MULKEY.

(No. 2998.)

Court of Civil Appeals of Texas. Amarillo.

May 16, 1928.

Rehearing Denied June 6, 1928.

Appeal from District Court, Hardeman County; Robert Cole, Judge.

Action by Keller J. Bell and others against W. G. Mulkey. Judgment for defendant, and plaintiffs appeal. Affirmed.

J. A. Templeton and P. G. Dedmon, both of Fort Worth, and Chas. Y. Welch, of Quanah, for appellants.

Marshall & Perkin, of Quanah, for appellee.

HALL, C. J.

This is the second appeal of this case, the former judgment having been reversed by this court in an opinion by Judge Boyce, found in 248 S. W. 785. A writ of error from that decision was dismissed by the Supreme Court for want of jurisdiction. The case was again tried at the October term of the district court of Hardeman county, again resulting in a judgment for the appellee.

It appears that the case was tried the last time upon the same pleadings as before. Judge Boyce has made such a clear and succinct statement of the nature and result of the suit in the opinion above referred to that, for the sake of brevity, we refer to that statement as a part of this opinion. The only addition which we care to make to Judge Boyce's statement is that by a first supplemental answer the appellee alleged that the order which he gave for the silos was given after he had purchased them, and that in purchasing them there was no understanding that he would sign any written order, but that he did thereafter sign it without reading it; that the salesman asked him to sign it simply as a matter of form; and that there was no consideration moving to him for signing said order, and therefore the order was without consideration.

He further alleges in his supplemental answer that, if the agent Schopmeyer had no authority to represent the plaintiffs, such fact was unknown to the defendant, and that said Schopmeyer acted for plaintiffs and within the apparent scope of his authority.

The evidence introduced upon this trial is practically the same as was introduced by both parties at the former trial. The case was submitted upon identically the same charge and issues as before, except the charge upon the burden of proof. The findings of the jury are identical with the former findings upon the issues submitted, except as to the amount found for appellee upon his cross-action. Such being the state of the record, it becomes unnecessary for us to discuss the law applicable to the facts under the pleadings at any great length.

The appellants insist that the former opinion erroneously disposed of the questions presented, but, after a review of the authorities cited by Judge Boyce, we are not prepared to recede from our former position, except with reference to the charge upon the burden of proof, which will be hereinafter discussed.

The gist of the appellants' contention upon this appeal, as formerly, is that the court erred in admitting evidence of the verbal agreement of sale, which was alleged by Mulkey and proven to the satisfaction of the jury upon both trials. Appellants' insistence is based upon the parol evidence rule, which Judge Boyce clearly held did not apply to the facts of this case. After reviewing the authorities, we are convinced that the evidence was admissible to show that there was no written agreement, and that the written order which appellants insist precludes all oral testimony was not in fact the agreement of the parties. The authorities cited by Judge Boyce in the former opinion unquestionably sustain his position and the facts support the holding.

A reconsideration of this purported written contract, which was signed several weeks after the silos had been purchased and had been hauled out to appellee's ranch, convinces us that it is simply a written order, with a chattel mortgage provision, which does not embody the true contract made between the parties, and is clearly not intended to reflect the terms of the sale. It is dated September 12, 1913, and requests the Western Silo Company at Des Moines, Iowa, to ship to appellee "the following goods on or before at once at your earliest convenience" two silos to Chillicothe. No shipment was made upon this order because the silos which were delivered were already at Chillicothe in the warehouse of one C. C. Crady. It was not intended that the Western Silo Company should ship the two silos described in the writing to the appellee, and it is admitted that it did not make any such shipment. Appellee and Schopmeyer, the appellants' agent, were on their way to Chillicothe from Quanah to haul the silos to the appellee's ranch when this order was signed.

The writing further provides that the bill of lading and settlement papers are to be mailed to the First State Bank of Quanah, and that appellee would receive the articles and make settlement in accordance with the specified terms immediately upon receipt of the silos. No bill of lading or settlement papers were ever sent to the First State Bank or any other bank. Appellee had received the articles, but was not asked to make settlement for a considerable time thereafter until after Schopmeyer had attempted to erect the silos and they had been blown down by a wind described as not unusual. The writing further provides that the carload rate of freight is allowed on silos. It was not intended that appellee should pay any freight whatever because none was due. The goods were already in Chillicothe, having been shipped to other parties who had refused to accept them.

The writing further provides that the order is not binding upon the company until accepted by it in writing at its office in Des Moines. As a matter of fact, it was not contemplated that the appellants would ever accept the order nor was such acceptance necessary. Long before the order could...