Brown Grain Co. v. Tuggle

• Decision Date: 06 December 1911
• Parties: BROWN GRAIN CO. v. TUGGLE.
• Court: Texas Court of Appeals

141 S.W. 821

BROWN GRAIN CO. v. TUGGLE.

Court of Civil Appeals of Texas. Austin.

December 6, 1911.

Appeal from Comanche County Court; J. M. Reiger, Judge.

Action by T. H. Tuggle against the Brown Grain Company. From a judgment for plaintiff rendered by the county court on appeal from a justice's judgment for plaintiff, defendant appeals. Reformed and rendered.

L. V. Reid, for appellant. Geo. E. Smith, for appellee.

Findings of Fact.

JENKINS, J.

Appellee brought suit in the justice's court against appellant to recover the sum of $101.70 for the failure of appellant to comply with its contract in delivering a car of seed oats. The contract was that appellant was to deliver to appellee at Comanche, Tex., a car of red rust-proof seed oats, free from Johnson grass seed, and suitable for sowing, at 60 cents per bushel. The car of oats was delivered and paid for by appellee. There were not free from Johnson grass seed, but contains such seed and were unfit for sowing. Appellee, upon discovering this fact, tendered the oats to appellant, who refused to receive them. Thereupon appellee sold said oats at 50 cents per bushel. The car was short 49 bushels. Appellee recovered judgment in the county court for $101.70 which was the amount due him, allowing 60 cents a bushel for the shortage and 10 cents per bushel for the difference in price which he paid for the oats and the price for which he sold them. Appellant appealed from the judgment of the justice's court, and in the county court appellee amended, and alleged that the oats contracted to be delivered to him were worth at the time of such delivery 75 cents per bushel, which, if true, would make his damages $150.85. Judgment was rendered in the county court in favor of appellee for this amount. The evidence, however, shows that said car load of oats was worth on the market in Comanche at the time of such delivery only 60 cents per bushel.

Opinion.

1. Appellant assigns error on the action of the court in allowing appellee to amend in the county court, alleging the oats were worth 75 cents per bushel, instead of 60 cents, as alleged by him in the justice's court. There was no error in this action of the court. Such amendment did not set up a new cause of action.

2. As the evidence shows that the oats contracted to have been delivered would have been worth only 60 cents per bushel at the time of such delivery, and that the car was short 49 bushels, appellee was entitled to a judgment for only the sum of...