Bob's Candy & Pecan Co. v. McConnell

• Decision Date: 06 January 1943
• Docket Number: No. 2439-7973.,2439-7973.
• Citation: 167 S.W.2d 511
• Parties: BOB'S CANDY & PECAN CO. v. McCONNELL et al.
• Court: Texas Supreme Court

Page 511

167 S.W.2d 511

BOB'S CANDY & PECAN CO. v. McCONNELL et al.

No. 2439-7973.

Commission of Appeals of Texas, Section A.

January 6, 1943.

Rehearing Denied February 3, 1943.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Bob's Candy & Pecan Company against J. P. McConnell and others to recover the amount paid for pecans condemned by the United States. A judgment for plaintiff was reversed and the cause remanded by the Court of Civil Appeals, and plaintiff brings error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

Terrell, Davis, Hall & Clemens and J. C. Hall, all of San Antonio, and Leonard Farkas, of Albany, Ga., for plaintiff in error.

Harrell & Bowers, of Breckenridge, and Frank M. Harrell, of San Saba, for defendants in error.

BREWSTER, Commissioner.

Petitioner, Bob's Candy & Pecan Company, of Albany, Georgia, purchased through W. T. Mayne & Co., brokers, of Austin, Texas, a carload of pecans from respondents, J. P. McConnell & Sons, of San Saba, Texas. The pecans were loaded at San Saba on January 10, 1936. The next day the McConnells drew a draft for $1,800.36, the sales price of the pecans, and attached to it the weight certificate and a shipper's order bill of lading. These they indorsed and delivered to the City National Bank of San Saba, which credited the McConnells with the amount of the draft and forwarded the draft, bill of lading and certificate through regular banking channels to the Albany Exchange National Bank, of Albany, Georgia, which had telegraphed a guaranty to the San Saba bank, on January 8, that the draft would be paid on presentation if supported by bill of lading and weight certificate "covering 40,000 pounds pecans at 4½¢ per pound fob San Saba, Texas." The pecans arrived in Albany on January 17. Although the bill of lading did not allow inspection, petitioner, by means of a trust receipt, procured the bill from the Albany bank, delivered it to the railway company, opened the car on January 18, and examined the pecans. Claiming that it found the pecans unfit for human consumption, petitioner refused to accept them. It then got the bill of lading from the railway company and returned it to the Albany bank.

Within the next few days the pecans were twice inspected by agents of the Food and Drug Administration, United States Department of Agriculture, and, on January 29, libel proceedings were filed in the United States District Court for the Middle District of Georgia to condemn them because they consisted "in whole or in part of a filthy, and decomposed vegetable substance, to wit: moldy, decomposed and wormy pecan nuts," in violation of the United States Food and Drugs Act, 21 U. S.C.A. § 1 et seq. On February 27, that court found that the pecans had been shipped in interstate commerce in violation of the statutes of the United States as alleged, adjudged them to be condemned and forfeited to the United States, and ordered the marshal to destroy them. The next day that officer certified that he had "totally destroyed" the pecans "by burning."

Thereafter petitioner sued the McConnells in Georgia and caused a writ of garnishment to be served on the Albany bank after the latter had received the draft from the San Saba bank but before it had remitted thereon. The bank answered that it had the sum of $1,800.36 on hand as payment of the draft, that it was not in position to answer to whom the money belonged, but was of the "opinion" that it was the property of the McConnells. The San Saba bank intervened and replevied the funds. After an appeal to the Georgia Court of Appeals, it was decreed that, because of the Albany bank's guaranty and the other facts stated above, the money belonged to the San Saba bank and was not subject to garnishment as the property of the McConnells.

This suit was then filed by petitioner against the McConnells and the City National Bank of San Saba, in the district court of San Saba county, Texas, to recover the $1,800.36 paid for the pecans and $419.80 freight charges paid on the shipment. The bank was sued on the theory that, by taking the draft and crediting the McConnells therewith, it became the owner of the draft, the bill of lading and the pecans; that, in placing the pecans in interstate commerce for shipment from Texas to Georgia, both the McConnells and the bank warranted that they were merchantable and fit for human consumption, under the United States Pure Food Law.

Over petitioner's objection, the trial court submitted to the jury one issue, namely, whether the pecans shipped by the McConnells were the pecans condemned by the United States District Court at Albany. The jury were unable to agree on an answer and were, in due course, discharged. Petitioner then moved for judgment, claiming there was no issue for the jury to determine. The motion was granted, and petitioner was awarded judgment against both the McConnells and the bank, the latter being awarded judgment against the McConnells for whatever petitioner might realize against it.

The bank did not appeal. Upon appeal by the McConnells, the Court of Civil Appeals at El Paso reversed the judgment of the trial court and remanded the cause for a new trial as to both the McConnells and the bank.

Three points of error are assigned, namely, that the Court of Civil Appeals erred in holding (1) that the identity of the pecans was an issue for the jury's determination; (2) that, since the trial court based its judgment, in part, on the fact that the sales memorandum issued by Mayne & Co. on the pecan shipment was received by the McConnells and, therefore constituted the sales contract between the parties and bound the McConnells by its warranty, it was error not to submit to the jury an issue as to whether the McConnells received the sales memorandum before shipping the pecans; and (3) that, since it was reversing the judgment as to the McConnells, it was necessary to reverse it also as to the non-appealing bank.

Without considering the effect of the libel judgment rendered by the United States District Court, on the issue as to the identity of the pecans, we think the trial court correctly concluded that the evidence presented no such issue for the jury. If the pecans destroyed by the United States marshal at Albany, Georgia, were not the pecans shipped from San Saba, Texas, then somewhere, somehow, somebody took the true shipment and substituted a false one. This could have occurred only while the pecans were in transit or ofter they arrived at their destination. And we think it may be conceded that to substitute twenty tons and eight pounds of pecans, sacked in three hundred and forty-eight bags, would have been no mean task. On this issue, the record shows that the McConnells loaded the pecans in railway car # A T 37587 at San Saba, on January 10, 1936, consigned to petitioner at Albany, where they arrived on January 17. On January 18 petitioner's agent broke the seal on the car, inspected the...