Booth v. Houston Packing Co.

• Decision Date: 30 October 1907
• Parties: BOOTH v. HOUSTON PACKING CO.
• Court: Texas Court of Appeals

105 S.W. 46

BOOTH v. HOUSTON PACKING CO.

Court of Civil Appeals of Texas.

October 30, 1907.

Appeal from Harris County Court; Blake Dupree, Judge.

Action by F. J. Booth against the Houston Packing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Sam R. Perryman, for appellant. Hutcheson, Campbell & Hutcheson, for appellee.

FLY, J.

On August 20, 1903, appellant filed his original petition, alleging that he had on October 10, 1902, shipped to appellee two cars of cattle for which it had agreed to pay appellant certain sums, but which it refused to pay and would not accept the cattle.

The grounds of liability are stated as follows: "That the plaintiff, upon being informed by the defendant of its refusal to receive and pay for said cattle, instructed the defendant to send their agent to assist in distributing the cows and calves in order that plaintiff could ship the same to New Orleans for sale. That your petitioner, together with the agent and employé of the defendant, distributed said cows and calves into three lots, one lot containing the calves, one lot containing the best cows, and one lot containing the medium cows. That your petitioner instructed and directed the defendant to ship to plaintiff the medium cows, and instructed and directed the defendant to load the said medium cows and return the same to plaintiff at Rosenberg, and instructed and directed the defendant to ship the best cows and the car of calves to New Orleans. That the defendant, negligently and without using the proper precaution, shipped to New Orleans the car of cows instructed by plaintiff to be shipped to Rosenberg, and shipped the car of cows instructed by plaintiff to be shipped to New Orleans to Rosenberg. That the net value of the car of cows shipped to New Orleans by the defendant was fifteen and 90/100 ($15.90) dollars each, amounting to a total of four hundred and twenty-nine and 30/100 ($429.30) dollars. That the freight on the car of cows shipped to Houston and returned to Rosenberg was thirty-seven dollars; that the damage by loss of weight and decline of price on the car of cows returned to Rosenberg that were ordered shipped to New Orleans at five ($5.00) dollars per head, one hundred and forty-five ($145.00) dollars."

On March 8, 1906, an amended petition was filed, which alleged: "That on or about the 10th day of October, 1902, at the special instance and request of this defendant, your petitioner shipped to this defendant two cars of cows. That defendant, prior to said shipment, promised and agreed to buy said two cars of cows from plaintiff. That said cows in due time arrived at the yards of the defendant company, and, after the arrival of same, this defendant refused to pay plaintiff the price agreed upon, and said intended sale was thereupon declared off by the consent of both parties. That plaintiff thereupon informed this defendant that he desired to ship one car of said cows to the city of New Orleans, La., to be sold there on the market, and that he desired the other car of cows returned to his home in Ft. Bend county, Tex., where plaintiff was engaged in the business of stock raising. That in consideration of the premises, and on account of the facilities and conveniences possessed by this defendant for handling cattle, and because of the fact that this defendant had refused to buy said cattle after same had been shipped to it upon its request, and in consideration that plaintiff was not to hold this defendant company to said contract of purchase, and...