Cox v. Steed

• Decision Date: 18 June 1910
• Citation: 131 S.W. 246
• Parties: COX et al. v. STEED et al.
• Court: Texas Court of Appeals

131 S.W. 246

COX et al. v. STEED et al.

Court of Civil Appeals of Texas.

June 18, 1910.

Rehearing Denied October 15, 1910.

Appeal from District Court, Carson County; F. P. Greever, Judge.

Action by N. A. Steed and another against C. B. Cox and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Hoover & Taylor, for appellants. Madden, Trulove & Kimbrough and R. E. Underwood, for appellees.

SPEER, J.

N. A. Steed and C. H. Harris sued C. B. Cox and M. L. Steele to recover the sum of $5,769 alleged to be due them under an agreement whereby the defendants were to pay the plaintiffs for the shrinkage in a certain lot of steers held in pens near Pampa, Tex. A very clear idea of the nature of the case may be had from the court's charge submitting the case as follows: "Now, if you find and believe from the evidence by a preponderance thereof that plaintiffs had a contract with defendants for the delivery of the cattle described in plaintiffs' petition at Pampa, Tex., on April 20, 1908, to be received and paid for by defendants at $4 and $4.25 per hundredweight, and that by agreement with defendants plaintiffs drove said cattle to the Combination Pasture near Pampa, Tex., on April 19, 1908, and were ready to deliver and weigh said cattle on April 20, 1908, and you further find that defendants refused to receive said cattle and notified plaintiffs that they would not receive and weigh said cattle until April 22, 1908, and you further find that plaintiffs declined and refused to deliver said cattle under the terms of the original contract, and hold the cattle until the said 22d of April to be weighed, unless defendants would pay plaintiffs for such shrinkage or loss in weight as the cattle might sustain during the two additional days they would have to hold said cattle in said pasture, and that defendants agreed and contracted to pay plaintiffs for such loss in weight at the rates specified in the original contracts respectively, and to submit the question of the amount of such weight to arbitration within 30 days, and you further find that plaintiffs, relying on such agreement, delivered and weighed said cattle to defendants on April 22, 1908, and that defendants then refused to pay plaintiffs for such loss, if any, or to submit the matter to arbitration, and you further find that the cattle did lose in weight during the time they were held in the pasture after defendants should have received same, then you will find for the plaintiffs and assess their damages as hereinafter charged you." From a judgment in favor of the plaintiffs, defendants have appealed.

There was no error in permitting the appellees to testify that the cattle in controversy were fed by them during the winter of 1907-08, that they full-fed them until they started with them to Pampa, and further to state how much feed and water was consumed during that time. This testimony tended to show the condition the cattle were in and the probability of their losing flesh by shrinkage upon being placed in what is designated the Combination Pasture. The ruling is in no just sense...