Browne v. Heid Bros.

• Citation: 12 S.W.2d 587
• Decision Date: 20 December 1928
• Docket Number: (No. 2212.)
• Parties: BROWNE v. HEID BROS., Inc.
• Court: Texas Court of Appeals

12 S.W.2d 587

BROWNE v. HEID BROS., Inc.

(No. 2212.)

Court of Civil Appeals of Texas. El Paso.

December 20, 1928.

Rehearing Denied January 10, 1929.

Appeal from El Paso County Court at Law; J. M. Deaver, Judge.

Action by Heid Brothers, Inc., against H. A. Browne. From an order overruling defendant's plea of privilege, defendant appeals. Reversed and remanded, with instructions.

Hunter, Brown & Brooke, of El Paso, for appellant.

Harrison & Scott, of El Paso, for appellee.

PELPHREY, C. J.

This is an appeal from an order overruling appellant's plea of privilege to be sued in Collin county, where he resides.

The averments of the petition, in brief, are to the following effect:

On July 3, 1926, defendant agreed in writing to sell plaintiff 20 cars of oats to be delivered in El Paso county at 33½ cents per bushel. The cars were shipped, but upon arrival at destination defendant refused to authorize delivery upon payment of the contract price and demanded payment at rate of 34½ cents per bushel, which plaintiff refused to pay, but later did pay said latter price and obtained the bills of lading, upon defendant's promise to adjust the price and reimburse plaintiff upon the basis of the contract price. There were 33,704 bushels in the cars, upon which defendant overpaid at the rate of one cent per bushel, making a total of $337.04, which defendant refused to pay, for which plaintiff sued with interest from July, 1926.

In addition to said 20 cars, plaintiff bought other cars of grain from defendant during July, August, and September, 1926, on the basis of guaranteed weights and grades at destination in El Paso county, defendant agreeing to make good any shortage in weights upon the basis of the contract price. That such cars arrived at destination in El Paso short in weight, the shortage in each car being stated, and at the contract price amounted to $250.44, upon which a credit of $19.95 was admitted, leaving a balance of $230.49, for which, with interest, plaintiff also sued.

Appellant's plea of privilege was in due form.

The controverting affidavit is in three paragraphs, which may be summarized as follows:

1. With respect to the 20 cars purchased under the contract of July 3, 1926, it was averred that same were to be delivered in El Paso county, weights and grades guaranteed at destination, and that such contract was in writing. This paragraph is irrelevant and need not be further considered, for the reason the cause of action stated in the petition as to said cars is in no wise based upon alleged shortage. Neither in the petition nor the controverting affidavit is any shortage of weight in said cars alleged.

The suit to recover the $337.04 is based upon the alleged promise to reimburse plaintiff for the overpayment of one cent per bushel on the first 20 cars.

A ground of venue stated in the controverting affidavit, which is foreign to the cause of action as declared upon in the petition, obviously will not defeat the plea of privilege. Witting v. Towns (Tex. Civ. App.) 265 S. W. 410.

2. This paragraph relates to the overpayment of $337.04, and alleges defendant agreed to repay the same at El Paso, Tex.

3. This paragraph relates to the item of $230.49 for shortage in weight on the cars shipped subsequent to the first 20. It was alleged plaintiff guaranteed weight at El Paso, and same arrived short in weight, as set up in the petition.

In view of the findings of fact made by the trial court, we do not know of any theory upon which the plea of privilege could have been overruled. Tested by those findings the judgment of necessity was erroneous. Appellee recognizes this, for it does not attempt to sustain the judgment upon the findings. On the contrary, it asserts that some of the findings are contrary to the undisputed evidence; it excepted to the findings and cross-assigns error thereto.

Appellee asserts, in effect, that, notwithstanding the contrary findings by the trial court, the undisputed evidence shows that the proper judgment was rendered; hence no reversible error.

There is no conflict in the evidence and we pass direct to the controlling questions presented by the pleadings and the evidence.

The effect of the first paragraph of the controverting affidavit has already been considered.

As to the second paragraph, the evidence shows that upon arrival of the 20 cars appellee paid the drafts and took up the bills of lading upon the promise of defendant to repay the overcharge. This promise is evidenced by two telegrams from appellant to appellee, which read:

"Pay bill drafts mail copies from telegraph showing our quotation arrived thirty three half cents will mail check difference."

"Replying if you don't have any more confidence in us not to think we will do what we say then don't deal with us and we will take charge of oats there now if your statement about price being thirty three half correct we good for our contracts will remit by check only three cars shipped yet any way on contract twenty cars you claim purchased that price pay drafts loading more when correction received...