Brothers v. Strong

• Decision Date: 13 May 1884
• Docket Number: Case No. 4974.
• Citation: 61 Tex. 555
• Parties: BRUNER BROS. v. JAMES STRONG ET AL.
• Court: Texas Supreme Court

61 Tex. 555

BRUNER BROS.

v.JAMES STRONG ET AL.

Case No. 4974.

Supreme Court of Texas.

May 13, 1884.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

Suit by appellants on a written contract executed by appellees June 8, 1882, whereby it was agreed that appellee Strong bound himself in the sum of $3,000, with W. A. Kelsey as surety, to furnish and deliver to Bruner Bros. one thousand head of one and two-year-old heifers on or before August 1, 1882, for which they agreed to pay $7.75 per head for yearlings and $9.75 for two-year-old heifers, and in the event Strong should fail to make $1 per head profit at that price, then Bruner Bros. were to pay at the rate of $8 per head for yearlings and $10 per head for two-year-old heifers. The cattle were to be delivered in Denton county, but by subsequent arrangement they were to be delivered in Lamar county. By the terms of the contract, Bruner Bros. were to deposit $3,000 in the bank of Texarkana, subject to Strong's draft, to be used in the purchase of cattle, and they averred that the amount was deposited by them as per contract and used by Strong; that he failed to deliver them the cattle according to contract, and refused to deliver back to them their money, except $2,100 of it, leaving in their hands $900 of their original deposit. They sued for damages for failure to deliver the cattle, for damages on the bond for $3,000, and for $900 for plaintiffs' money in their hands.

Defendants set up that, as an inducement to defendant Strong to make the contract, Bruner Bros. told him they knew where he could buy the cattle very low, so as to make more than $1 per head upon them under the contract, and they refused to tell him until after the contract was made; that Bruner Bros. were cattle dealers, and defendant was ignorant of the prices of cattle and was deceived and misled by their promise, and that the same was a material inducement to the contract, etc.; and when he found that the cattle could not be bought at the prices represented, he notified plaintiffs that he had failed and that he demanded a rescission of the contract, and that plaintiffs then offered to assist in getting the cattle, and bought one hundred and fifteen head, which he took on the contract, and which were paid for out of the deposit of $3,000 with $2,100 taken from the same; that plaintiffs also received fifty head of cattle from defendant at $10.50 per head, which leaves only $375 of plaintiffs' money in his hands, which he tendered into court and asked that the contract be canceled.

Plaintiffs demurred, and specially excepted to the answer because it sought to vary the terms of an agreement by prior and contemporaneous verbal declarations and matters not embraced in the written contract, and for reply they denied the allegations set up.

Plaintiffs' demurrer and special exceptions overruled. Judgment in favor of plaintiffs for the $900 left in defendant's hands, with interest, but no damages.

Witness J. M. Benefield testified: “I heard T. N. Bruner tell J. Strong that he knew where he (Strong) could purchase some cattle that he could make a dollar a head on. J. Strong said that if he could guaranty that, that he (Strong) would make or close the contract. Mr. T. N. Bruner said that he would give him the names of parties that owned the cattle, but could not give him the guaranty. I know that James Strong is dealing in cattle, buying and selling.” I was present part of the time the contract was being made. They made the contract at my house. Mr. Strong said he would make the contract if he knew where to get cattle. Mr. B. told Mr. S. they could give him names, so as he might get terms so as to make $1 per head profit, but would not insure it. Mr. S. said if he could get the cattle he would buy them in order to get $1 per head profit; . . they would not guaranty the purchase of the cattle; . . Mr. Strong attempted to get Bruner to guaranty that he could get the cattle. Defendant James Strong testified: I told them if they would promise me $1 profit I would get them. They said they wouldn't guaranty $1 profit, but that they would get their cattle themselves, unless they could contract with me.

There was much other evidence not necessary to detail.

Maxey, Lightfoot & Denton, for appellant, cited on the parol evidence to qualify the contract: Wooters v. I. & G. N. R. R. Co., 54 Tex., 294;Jackson v. Stockbridge, 29 Tex., 398, and authorities there cited on pages 398 and 400; Smith v. Garrett, 29 Tex., 53;Hunt v. White, 24 Tex., 643; 1 Greenl. Ev., sec. 275; Self v. King, 28 Tex., 553;Reid v. Allen, 18 Tex., 241;Rockmore v. Davenport, 14 Tex., 602;Belcher v. Mulhall, 57 Tex., 17;Franklin v. Mooney, 2 Tex., 454;Epperson v. Young, 8 Tex., 135;East L. & R. R. R. Co. v. Garrett, 52 Tex., 133.

On the measure of damages they cited: Indianola v. G. W. & T. P. R'y, 56 Tex., 595;Yetter v. Hudson, 57 Tex., 613, and authorities there cited; Moore v. Anderson, 30 Tex., 230;Durst v. Swift, 11 Tex., 281; 2 Wait's Act. & Def., 436; Perkins v. Lyman, 11 Mass., 76.

Todd & Hudgins, for appellee, cited: Henderson v. R. R. Co., 17 Tex., 580;Wintz v. Morrison, 17 Tex., 383;Haldeman v. Chambers, 19 Tex., 40;Mitchell v. Zimmerman, 4 Tex., 79; 1 Story's Eq. Jur., § 193, and especially Story on Con., § 506, and notes; 2 Pars. on Con., titles “Fraud,” “““Rescission;” Hazard v. Irwin, 18 Pick., 95; 9 Ves. Jr., 21; Durst v. Swift, 11 Tex., 281-2;Moore v. Anderson, 30 Tex., 230;Heilbroner v. Douglass, 45 Tex., 403; Field on Dam., § 154 et ante; 2 Greenl. Ev., § 257; 2 Sedg. on Meas. Dam., p. 232 et seq. (7th ed.).

STAYTON, ASSOCIATE JUSTICE.

The answer to which the demurrers were urged must be considered with reference to the petition to which it was an answer. There being no pleading which put in issue the due execution of the instrument sued on, of date June 8, 1882, the question is, Did the facts stated in the answer constitute a defense which could be urged against the action based on that agreement?

It is a general rule that all evidence in regard to conversation which may have been had between parties, before reducing an agreement to writing, which may have resulted in a written contract clear in its terms, is inadmissible for the purpose of giving to such contract a meaning other than that conveyed by the language in which the parties have selected to evidence their...