Coleman v. Colgate

• Decision Date: 18 November 1887
• Citation: 6 S.W. 553
• Court: Texas Supreme Court
• Parties: COLEMAN <I>et al.</I> v. COLGATE.

6 S.W. 553

COLEMAN et al. v. COLGATE.

Supreme Court of Texas.

November 18, 1887.

Commissioners' decision. Appeal from district court, Coleman county; I. P. HUTCHISON, Judge.

This suit was brought by the appellee, John Colgate, against D. E. Graston and the firm of Coleman & Davidson, for $1,120.68 and 8 per cent. interest per annum from September 1, 1884, the proceeds of wool belonging to plaintiff shipped by Coleman & Davidson, and sold March 20, 1885. Graston answered by sworn plea of misjoinder as to him, and general denial. Coleman & Davidson answered, alleging that the action was not joint against them and Graston, and he should not have been joined with them in the action; general denial, and special answer that Graston was one of plaintiff's general agents in Coleman county, Texas, who delivered the wool to them twenty-sixth June, 1884, which was shipped to Coombs & Bigelow, and sold for $1,797.22 on second July, 1884; that, after deducting Graston's one-third expenses and amounts admitted by the parties to be correct, there remained in their hands the amount of money claimed by plaintiff as his two-thirds of the proceeds, — the amount claimed in his petition subject to offsets of a note of plaintiff of $533.33 bought in by them, (about which there is no dispute,) and an account of $616.99 made with R. L. Dunman & Co., purchased by them; claiming a balance due them on settlement of all matters in suit of $76.25, for which they pray judgment.

Colgate and Graston made a contract in writing in duplicate on the fifteenth February, 1883, by which Colgate agreed that on or before the first day of March, 1883, he would put Graston in possession of a ranch then owned and being bought on Home and Red Bank creeks in Coleman county, and along with the ranch would turn over to Graston 2,000 ewe sheep, and a sufficient number of rams, and from year to year supply other rams, as needed by the flock; that if the sheep had to be dipped for scab, he was to pay two-thirds of the cost of tobacco for dip; that he would pay one-third of the proceeds of wool clipped from the flock each year to Graston, and to bear two-thirds of the cost of marketing same, and two-thirds of the cost of sacks; that he would furnish $400 worth of lumber for Graston to make a box-house on the ranch, and $100 worth of lumber for portable pens; and, at the termination of the lease, to turn over to Graston one-third of the increase of the flock. Graston bound himself to take charge of the ranch and sheep; keep and care for same in a shepherd-like manner; keep them on the ranch; provide and supply them with food and shelter; use all means to prevent disease or loss; that he would erect the box-house, make the pens, and, at the expiration of the contract, surrender the ranch in good condition, and the original sheep, with those afterwards purchased by Colgate; bear one-third of the expense in removing the wool to market each year; do all things needful for the good management of the sheep; pay all expenses of every kind; perform all labor incident to the care of the sheep, except as otherwise provided in the contract. It was agreed by both the parties in the contract that it take effect on the first day of September, 1883, and terminate on the first day of September, 1886, or at the death of Graston, or on failure of either party to comply with the contract. There are other provisions as to how the flock may be increased, not necessary to be stated. This contract was not recorded. Defendants, Coleman & Davidson, sought to show that Graston and one Starkweather were general agents of Colgate, and that they authorized the goods bought by Graston from Dunman & Co., with whom the account set off by defendants was made, and that it was for the benefit of plaintiff, and the goods were used on the ranch for plaintiff. It was in proof that Graston went on the ranch, and took charge of the same, with the sheep, under the contract. The foregoing contract was offered and read in evidence by plaintiff, and the evidence showed plaintiff was entitled to recover as he did, unless the account for the goods bought by Graston of R. L. Dunman & Co. was a valid charge against plaintiff. Plaintiff's evidence was full; but the substance of it was that he never authorized Graston or Starkweather to make the account; that they were not his general agents; that Graston's relations to him were limited by the contract. Starkweather was his friend; he had confidence in his judgment; and as he himself was living at a distance, — in Toledo, Ohio, — he frequently requested Starkweather to act for him in matters stated at the time; asked him to look after his ranch, and report to him any matter that would be important; sent the money to him that was to pay for the lumber for the house and pens, and Starkweather kindly attended to such matters without any charges. He says he never authorized the payment of the account out of his part of the proceeds of the wool; told Graston he would help him with money at one time, but could not get it, and did not do it. He attached to his answers some letters from Coleman & Davidson, and from Graston, and all letters of his to Graston (copies) that relate to the matter in controversy, as he declares; none from Starkweather, because they are very voluminous, — would cover 200 or 300 pages, and principally relate to matters foreign to the controversy. He authorized Coleman & Davidson to apply enough of the proceeds of the wool to pay the note pleaded in set-off; but never authorized the payment of the account. Graston swore that he delivered the wool to Coleman & Davidson, by directions of Starkweather, and agreed with them that they could retain proceeds of same until there was a settlement between them, Colgate and himself; that he lived on the ranch under the written agreement; never informed Coleman & Davidson that there was such a contract. A short time after the contract was made, he told plaintiff he could not carry out his part of it, unless he could get either money or credit for supplies to run the ranch. Plaintiff replied that he could get money at cheaper rates where he lived, and would borrow and let him have it. He says: "I told plaintiff I could get credit at R. L. Dunman & Co.; plaintiff said, `Go ahead,' that he would see I got the money to go through all right. There was nothing said about my having the goods charged to plaintiff. The understanding was, I was to get what supplies I needed, and plaintiff would loan me the money to pay for them. He didn't furnish me the money. If he had, I would have owed him for it. I got some supplies after this from Dunman & Co., but did not tell them whom to charge them to. The goods have not been paid for." Starkweather testified that by directions of plaintiff he instructed Graston to turn over the wool for shipment to Coleman & Davidson. He says: "I reside in Texas; plaintiff, in Toledo, Ohio. He wrote me to attend to this wool matter for him. I have at other times attended to business for him in Coleman county, at his special request. He asked me to notice his ranch when I was passing it, and if there was anything wrong, report to him. I have to pass his ranch in going and returning from home to town. I bought some material to build a house on plaintiff's ranch, with money furnished by him. I got some locks and nails for house from R. L. Dunman & Co., and paid for them, or had them charged to myself. I did not tell Walker that plaintiff would pay for such supplies as R. L. Dunman & Co. might let Graston have, to be used on plaintiff's ranch." Coleman, of Coleman & Davidson, proved that the wool was received and shipped, and that $1,120.68 was plaintiff's share of the proceeds, but claimed the note and the...