Consolidated Oil Co. of Texas v. Schaffner

• Court: Texas Court of Appeals
• Writing for the Court: Walthall
• Citation: Consolidated Oil Co. of Texas v. Schaffner, 286 S.W. 258 (Tex. App. 1926)
• Decision Date: 27 May 1926
• Docket Number: (No. 1854.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: CONSOLIDATED OIL CO. OF TEXAS v. SCHAFFNER et al.

286 S.W. 258

CONSOLIDATED OIL CO. OF TEXAS v. SCHAFFNER et al.

(No. 1854.)^*

Court of Civil Appeals of Texas. El Paso.

May 27, 1926.

Rehearing Denied July 1, 1926.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by George A. Schaffner and another, doing business as Schaffner Bros., against the Consolidated Oil Company of Texas. From the judgment, the defendant appeals, and plaintiffs filed a cross-assignment of error. Reversed and remanded.

Barker & Orn, of Cisco, for appellant.

Butts & Wright, of Cisco, for appellees.

WALTHALL, J.

Schaffner Bros., plaintiffs below, brought this suit against the Consolidated Oil Company of Texas, a jointstock association, acting under a declaration of trust, and joined other defendants as trustees thereof, asking recovery upon five certain promissory notes, aggregating in amount the sum of $22,250, executed by Consolidated Oil Company of Texas, payable to Schaffner Bros., on dates from March 1, 1920, to November 1, 1920, with interest from date, and providing for attorney fees, and secured by a chattel mortgage upon certain oil well drilling tools and fishing tools, stating their location to be on certain leases in Callahan county and Comanche county, and in transit to Cisco, Tex., consigned to plaintiffs, also one Ford runabout car and one Republic truck.

As a defense to the cause of action, defendant, Consolidated Oil Company, pleaded that on the 15th day of October, 1919, it purchased from plaintiffs the said tools at the agreed price of $45,000 and paid therefor $22,500, and agreed to pay the balance of $22,500, which for the time being was evidenced by open account; that it was then and there agreed that the plaintiffs should use said tools and pay the balance of the purchase price therefor in 2, 4, and 6 months after the transaction aforesaid, and that at the time the tools were so purchased it was agreed that, in the event default should be made in the payment of said account, plaintiffs would take said tools in full payment of the balance due on the purchase price thereof; that thereafter, at the request of plaintiffs, defendant executed the said notes, but that at the time the execution of the notes was under consideration and at the time they were executed plaintiffs and defendant renewed their former agreement that, in the event of default of their payment, plaintiffs would accept said tools in full payment of the balance due thereof.

Defendant alleges that, after each of said notes had become due, and default made, it delivered in payment of the amount due on said notes all of said tools as it had agreed to do.

On the special issues submitted, the jury found:

(1 and 2) On the occasions when the tools in question were purchased, and when the notes sued on were executed, plaintiffs and defendant, the latter acting through its trustees, agreed that, in the event default should be made in the deferred payment for the tools, plaintiffs would accept the tools purchased in satisfaction of such deferred payment.

(3) Dr. D. S. Rump (one of the trustees for defendant) for defendant, between January 15 and 20, 1921, surrendered to Ed. Schaffner title and possession of the tools, then in possession of the plaintiffs.

(4) Ed. Schaffner, at the time inquired about in question No. 3, was the agent of plaintiff and authorized to receive the property in satisfaction of the debt evidenced by the notes sued on, as the terms "agency" and "agent" are defined in the charge.

(5) Ed. Schaffner, acting for plaintiffs, at the time stated in question No. 3, did not accept the tools then in possession of defendant in full payment and satisfaction of the indebtedness evidenced by the notes sued on.

(6) Plaintiffs did not, on dates between the 15th and 20th of January, 1921, or thereafter, appropriate the property sold by them to plaintiffs by virtue of any delivery made to Ed. Schaffner.

(7) The value of the tools delivered by defendant to Ed. Schaffner on dates stated above, was $12,000.

On the verdict, as above, judgment was rendered for plaintiffs in the sum of $16,166.27, from which defendant prosecutes this appeal. Plaintiffs also filed a cross-assignment of error.

Opinion.

On the trial, Dr. D. S. Rump, a witness for defendant, was asked to state in detail a conversation had between himself and Ed. Schaffner (not one of Schaffner Bros.) about the 18th day of January, 1921, at Cross Plains, Callahan county, to which place Dr. Rump had gone for the purpose of delivering the tools in controversy. Dr. Rump was permitted to state what he said in the conversation to Ed. Schaffner, but sustained objection to any statement made by Schaffner to Dr. Rump at that time in connection with the delivery or acceptance of the tools. We think the exclusion of the evidence shown by the bill of exceptions to have been tendered error.

The bill of exceptions discloses that the appellant offered to prove that:

"D. S. Rump, a trustee of the defendant company, * * * went over to Cross Plains, Tex., * * * on or about the 18th day of January, 1921, and delivered the tools to Ed. Schaffner, the agent of the plaintiffs, and stated to him that the Consolidated Oil Company of Texas, then and there delivered said tools to him for the plaintiffs in this cause under the agreement made at the time that the tools were purchased, and when the notes were executed and...