Consolidated Kansas City Smelting & R. Co. v. Gonzales

• Decision Date: 01 April 1908
• Citation: 109 S.W. 946
• Parties: CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. GONZALES.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

109 S.W. 946

CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. GONZALES.^*

Court of Civil Appeals of Texas.

April 1, 1908.

Rehearing Denied April 22, 1908.

Appeal from District Court, El Paso County; Jas. R. Harper, Judge.

Action by Longino Gonzales against the Consolidated Kansas City Smelting & Refining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Waters Davis, for appellant. S. Engelking, for appellee.

FLY, J.

Appellee sued appellant to recover the sum of $2,433.60, alleged to be due him for 26 tons of copper ore converted to its own use by appellant. Appellant answered by general denial, and pleaded that the ore was received under a custom that the value should be ascertained, and that appellant should not pay for it unless it contained 3 per cent. of copper, and that less than that percentage was valueless, and that the ore in question contained less than 3 per cent. and appellee had been notified of that fact, but had abandoned the ore. The cause was tried by a jury, and resulted in a verdict and judgment for appellee for $1,375.

The circumstances are sufficient to justify the conclusion that appellee shipped a car load of copper ore from Mexico to appellant, at El Paso, Tex., and advised appellant of that fact; that the bill of lading accompanying the shipment was received by appellant; that appellant acknowledged receipt of the ore, and wrote appellee's agent about it. The ore received by appellant was shown to be of the same color and quality as that shipped by appellee. The identity of the ore shipped and that received by appellant was fully proved. Appellant converted the ore to its own use, and refused to pay for the same. It was shown to be worth at least the sum found by the jury. These conclusions of fact dispose of the first and second assignments of error.

The court made the right of appellee's recovery depend, among other things, on proof that appellee "shipped to defendant a car load of ore," and "that the same ore so shipped by the plaintiff was received by the Consolidated Kansas City Smelting & Refining Company," and it was not error, therefore, to refuse a charge embodying the same matter submitted by appellant. No matter what rules may have been adopted by appellant as to a forfeiture of the ore, if a person shipping ore to appellant failed to give orders as to its disposal within 15 days after it had been received by appellant, it had no right to appropriate the property of another to its own use and benefit and refuse to pay for it. Appellant had the right to establish reasonable rules as to the conduct of its business, and persons dealing with it will be required to comply with such rules; but a rule permitting the arbitrary forfeiture of property rights and the appropriation of the property of others will not be tolerated. Appellant may conduct its business in its own way, so long as it does not attempt to disregard the rights of others; but it cannot establish rules the enforcement of which would allow it to confiscate and appropriate the property of other parties. The rules and customs of a certain business will be held to have been in contemplation in making a contract involving that business, but unjust and unreasonable rules and customs are not allowed to enter in and form a part of such contracts. As said by the Supreme Court of Kansas in the case of Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444, cited by appellant: "Parties are always presumed to contract with reference to a uniform and well-settled custom or usage pertaining to the matters concerning which they make the contract, where such custom or usage is not in opposition to well-settled principles of law, nor unreasonable." In this case the custom or usage of appellant was not shown to be so general and so universally received and acted upon as that no one could profess ignorance of it, and appellee was not shown to have any knowledge of it, but, on the other hand, it affirmatively appeared that appellee knew nothing of such custom, and his experience in shipping to appellant had shown him that no such rule existed. An expert placed on the stand by appellant swore that he knew nothing of the custom as to the time when the ore would be forfeited by the owner. Appellant could not have contracted with a view to a custom that he knew nothing of, and of which even Taylor, who was constantly about appellant's smelter, knew nothing. Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407. As said in the case cited: "It would seem, however, that upon principle, for a party to be bound by a local usage, or a usage of a particular trade or profession, he must be shown to have knowledge or notice of its existence." It follows that the court did not err in refusing to instruct the jury that appellant could convert the ore to its own use if it was not called for by appellee within 15 days. Appellant did not notify appellee of the existence of its rule. Appellant could not arbitrarily establish...