Cleveland v. Heidenheimer

• Decision Date: 23 February 1898
• Citation: 44 S.W. 551
• Court: Texas Court of Appeals
• Parties: CLEVELAND et al. v. HEIDENHEIMER.<SMALL><SUP>1</SUP></SMALL>

44 S.W. 551

CLEVELAND et al. v. HEIDENHEIMER.¹

Court of Civil Appeals of Texas.

February 23, 1898.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by Isaac Heidenheimer against Cleveland & Cameron. Judgment for plaintiff, and defendants appeal. Affirmed.

L. C. Alexander, for appellants. M. C. McLemore, Jr., Jones & Sleeper, and Robt. G. Street, for appellee.

FISHER, C. J.

This case was formerly before the supreme court, and will be found reported in 17 S. W. 524, and before this court, and is reported in 32 S. W. 826. In addition to the nature of the controversy as stated in the former opinions rendered in the case, we copy from appellee's brief as follows: "This suit was brought in the district court of McLennan county in January, 1884, by Isaac Heidenheimer, of Galveston, against Cleveland & Cameron, of Waco, for the price agreed by the defendants by written contract of February 1, 1883, to be paid plaintiff for delivery in August, 1883, of 200,000 pounds of bacon, Fowler Bros.' packing, after tender, refusal to accept delivery, resale, and crediting vendees with proceeds. The defendants pleaded: First. A general demurrer, not urged. Second. A general denial. Third. That the contract sued on was a gambling contract, and no actual delivery of the meat was contemplated; and set up that, among other terms of the contract, it was stipulated that the sale (at 10.85 for August delivery) was on a basis of 10 1/10 cents per pound as the then present price, and, in the event the market price of that particular kind of bacon should at any time exceed that sum, then plaintiff was to pay the defendants the sum of such excess, based on 200,000 pounds, and the defendants were authorized to make sight draft on plaintiff at any time for such excess; and, in case the price should shrink below said sum of 10 1/10, then plaintiff could draw on defendants for such decline below said sum of 10 1/10 on the quantity as therein named. Fourth. That plaintiff repudiated and violated the contract anterior to the breach complained of, and hence is not entitled to recover. Fifth. That the contract contemplated delivery on board the cars at Kansas City at any time in the month of August, as defendants might direct, thence to be shipped in car-load lots direct to their customers at different points in the state. That they had made contract with many of their customers for deliveries in the month of August, 1883. That after his repudiation of the contract, and refusal to pay draft drawn by them, the market having reacted in his favor, the plaintiff claimed the contract was still in force, drew drafts on them under it, and, pursuant to that purpose, on the 1st day of August, wired them, tendering the bacon, and asking shipping instructions. That on receipt of this telegram Cleveland went to Kansas City, where the packing house controlling the meat contracted for was situated, and, finding plaintiff had not engaged the bacon to fill their contract, that they might be in a situation to fulfill their own engagements with their customers for delivery of car-load lots in August, they sent telegram of August 18th to plaintiff: `We are prepared to receive bacon under our contract of February 1, 1883. Ship same to us at Waco, not later than Tuesday, August 21st, 1883, which day we now designate for delivery. If not shipped by that date, we cannot accept delivery.' That he did not ship the bacon on or before the 21st, and therefore defendants refused to receive it, as they had a right to do, and purchased ten car loads direct from Fowler Bros. for the use of their customers. The plaintiff, by supplemental petition, says it is not true that there was no bona fide intention that there should be an actual delivery of the meat, but, on the contrary, charges that both parties understood that they were dealing in the actual commodity at the time that the contract was made; and that actual delivery was contemplated, and necessary to performance; and thereafter, by their correspondence, defendants insisting on such delivery, and the plaintiff giving them the assurance thereof, the existence of such mutual understanding from the beginning was repeatedly confirmed, and its continuance expressly declared; that the provision in the contract to the effect that, if the price of bacon should rise or fall with reference to the market price at the time of sale, the parties should respectively have the right to draw for such difference, was adopted, and intended for mutual protection in securing ultimate fulfillment of the contract,—delivery on the one hand and payment on the other. While not denying he afterwards expressed dissatisfaction with some of the stipulations of the contract, and a desire to substitute another for it, the plaintiff does deny that the contract was ever breached by him, or rescinded or annulled, and says, on the contrary, defendants held him to it, and charges that after said alleged breach its continuous operation was repeatedly confirmed by both parties. The plaintiff also says that it is not true, as stated by defendants in their first amended original answer, that Cleveland went to Kansas City for the purpose stated therein, but, on the contrary, the object and purpose of his mission to that place was to arrange with Messrs. Fowler & Bros., the packers of the meat sold, not to sell any meat to I. Heidenheimer for shipment to Waco for two or three days, and then do as was done, — order the meat to be shipped within a time so arranged for nonshipment; and so the said Cleveland did arrange that no meat should be shipped to Waco between the 18th and 21st of August, 1883, inclusive, by said Fowler Bros. or the Anglo-American Packing Co. (being the same parties), and thereupon and thereafter, and not before, they caused to be sent from Waco, Texas, to plaintiff, at Galveston, Texas, the telegram of August 18th, already set out; that on receipt of said telegram the plaintiff ordered the meat or bacon shipped on the 22d of August, 1883, or as early as possible, because of the conduct of the said Cleveland acting for the said firm; that otherwise it would have been shipped on the 21st; and says that the shipment was made at as early a time as was possible to be done, and in a reasonable time after notice or request to plaintiff at Galveston. There was a verdict and judgment for plaintiff."

We find that plaintiff, Heidenheimer, and the appellants entered into a contract for the delivery by the former to the latter of 200,000 pounds of bacon in the manner and on the terms called for by the contract, as stated and set out in the former opinions delivered in this case. A short time after the contract was made, and before the delivery of the bacon therein called for, Heidenheimer transferred to R. B. Hawley an interest in the contract. We find that, in accord with the verdict of the jury, the contract entered into contemplated that the bacon should be actually delivered. And we find from all the facts and circumstances in the record that there is evidence to warrant the verdict upon the proposition that it was not a gambling contract, or one dealing in futures. On the 18th of August, 1883, the appellants, Cleveland & Cameron, sent from Waco, Tex., the following telegram: "Isaac Heidenheimer, Galveston, Texas: We are prepared to receive delivery of bacon under our contract of February 1, 1883. Ship same to us at Waco not later than Tuesday, August 21st, which day we now designate for delivery. If not shipped by that date, we cannot accept delivery. [Signed] Cleveland & Cameron." Heidenheimer, upon receipt of this telegram, left for Kansas City, in order to purchase from Fowler Bros., the packers referred to in the contract, the 200,000 pounds of bacon called for. He arrived there on August 21st, and immediately went to the place of business of Fowler Bros., and requested them to ship the bacon on that day. This they refused to do, but on the next day—August 22d—Heidenheimer shipped the bacon to Cleveland & Cameron at Waco, and took the bills of lading therefor in the name of R. B. Hawley & Co., of which firm he was a member. Heidenheimer immediately thereafter came to Waco with the invoice and bills of lading, and presented them to appellants, who refused to take them, and refused to receive the bacon, stating, in connection therewith, that the plaintiff had no right to ship the bacon on the 22d; that he ought to have shipped it on the 21st. Heidenheimer then demanded of the appellants the contract price of the bacon, which they refused to pay. We further find that Heidenheimer, after receiving the telegram from appellants notifying him to ship the bacon, exercised proper diligence to comply with that request, but his failure to ship the bacon on the day requested by the telegram was owing to the conduct of appellants through Cleveland, a member of the firm. He went to Kansas City prior to the time that Heidenheimer reached there, and for the purpose of preventing Heidenheimer's procuring the bacon, and shipping it out within the time requested in their telegram, entered into an agreement with Fowler Bros. that they would not ship any bacon to Waco, Tex., before the 22d of August. And we find that when Heidenheimer approached Fowler Bros. for the purpose of procuring the bacon in the time...