Caswell v. Lensing & Bennett

• Decision Date: 08 December 1915
• Docket Number: (No. 5538.)
• Citation: Caswell v. Lensing & Bennett, 183 S.W. 75 (Tex. App. 1915)
• Parties: CASWELL v. LENSING & BENNETT.
• Court: Texas Court of Appeals

183 S.W. 75

CASWELL v.LENSING & BENNETT.

(No. 5538.)

Court of Civil Appeals of Texas. Austin.

December 8, 1915.

Rehearing Denied February 9, 1916.

Appeal from Milam County Court; John Watson, Judge.

Action by A. Lensing and T. J. Bennett, copartners against W. T. Caswell and another.From a decree for plaintiffs, the named defendant appeals.Affirmed.

Henderson, Kidd & Gillis, of Cameron, for appellant.E. A. Camp, of Rockdale, for appellee.

KEY, C. J.

The nature of this suit is disclosed by the trial judge's full and correct findings of fact, which are as follows:

"Findings of Fact.

"(1)The court finds that the plaintiffs, Lensing & Bennett, are a firm composed of A. Lensing and T. J. Bennett, and that said firm owned a farm in Milam county during the year 1912 and 1913, and that they rented a part of said farm to Tex Slater for the year 1913, and that said Slater took and worked said land as their tenant during the year 1913, and raised a crop thereon, including the 5 bales of cotton in controversy; that to enable the said Slater to make a crop on said land during the year 1913the plaintiffs, as landlords, furnished money, advancements, and supplies to the said Slater during the year 1913, amounting to the sum of $206.10, and that none of said amount had ever been paid to plaintiff, and that the said Slater was during that time, and now is, wholly insolvent.

"(2) That the German Mercantile Company was a corporation doing a retail business during the year 1913 at Thorndale, Tex., Milam county, and that M. B. Leach was its duly authorized agent and general manager.That about December 20, 1913, application was filed in the United States court to have said company adjudged a bankrupt, which application was granted, and a receiver was appointed, and that all of the property and assets of said company were disposed of through said bankrupt proceedings, and by said bankrupt court, and said German Mercantile Company is now wholly insolvent, and is a defunct corporation.

"(3) That W. T. Caswell was a cotton buyer and resided at Austin, Tex., and during the year 1913, was engaged in the business of buying cotton from various parties, including the German Mercantile Company, and that one Schultz was Caswell's agent, and resided at Taylor, Tex.

"(4) That said Slater traded on account with German Mercantile Company during the year 1913, and said company had a mortgage on said Slater's 1913 crops, and that in the fall of the year Slater gathered his crops and sold a goodly portion thereof to the said German Mercantile Company, with the knowledge and consent of plaintiffs, the proceeds of which were applied on Slater's account to said company.That early in November, 1913, the plaintiffs notified Slater they would have to be paid before any more of the cotton would be permitted to be sold, and thereupon Slater gathered the 5 bales of cotton in controversy, and it was agreed between Slater and plaintiffs that Slater should carry said 5 bales of cotton to Thorndale and sell them to the German Mercantile Company, and plaintiffs would be paid their $206.10 out of said cotton.On November 6, 1913, Slater carried the five bales of cotton to Thorndale, had them weighed, and took samples and tickets to the German Mercantile Company, and gave them the written statement of plaintiffs of the amounts due plaintiffs by Slater, and asked said company to buy said cotton, and give Slater the money due Lensing and Bennett; Slater telling said company the instructions which had been given Slater by plaintiffs and their agreement.M. B. Leach, acting for said company, took the cotton tickets and samples, figured up the amount, and gave to Slater a check for the rents out of the 5 bales of cotton, being one-fourth of the proceeds, and told Slater that he would fix the rest of it with plaintiffs.To this Slater protested, and insisted that this was not satisfactory, and that he wanted to carry the money back to plaintiffs.Slater was a negro, and did all he reasonably could do to get the company to pay the money without a disturbance of the peace, telling Leach that if he(Slater) did not carry the money back that Lensing would whip him.Leach finally told him that the company would keep the cotton, and that they would give Slater credit on his account for the proceeds, and that he would later settle with Lensing and Bennett.Slater returned to plaintiffs' farm, and gave to plaintiffs the check for the rents out of said cotton which had been given by the company, and reported to the plaintiffs what had been done and said by Leach.The next morning plaintiffs called Leach by phone from its farm, which is about 15 miles from Thorndale, and Leach at this time promised to pay plaintiffs the $206.10 if plaintiffs would send for it; and plaintiffs told Leach that they would send the negro for the money that day, and that same day plaintiffs sent the said Tex Slater back to Thorndale for the money, and Leach again refused to pay it, and on the following day, Saturday, November 8, 1913, Lensing went to Rockdale and again phoned Leach, but could get no satisfaction from Leach, and Lensing then took the train and went to Thorndale and personally saw Leach regarding the matter, and at this time Leach told Lensing that the cotton had been sold and was then in Liverpool, and that the money could not then be paid, but if Lensing would get Slater and bring him back to Thorndale, with itemized statement of plaintiffs' account, that the company would pay it.Lensing would not agree to this suggestion, and went out and located the 5 bales of cotton at the cotton compress in Thorndale.Lensing then went to the bank and tried to cash the check which had been sent him for rents, but the bank declined payment of the check on account of no funds.Lensing then returned to Leach and threatened to have him arrested for giving checks on the bank without funds, and thereupon Leach paid to Lensing in cash the amount called for in said check and the check was destroyed.Lensing then returned to Rockdale on the night train, and...