Diamond Mill Co. v. Adams-Childers Co.

• Decision Date: 26 November 1919
• Docket Number: (No. 6102.)
• Citation: 217 S.W. 176
• Parties: DIAMOND MILL CO. v. ADAMS-CHILDERS CO.
• Court: Texas Court of Appeals

217 S.W. 176

DIAMOND MILL CO. v. ADAMS-CHILDERS CO.

(No. 6102.)

Court of Civil Appeals of Texas. Austin.

November 26, 1919.

Rehearing Denied January 7, 1920.

Appeal from Coleman County Court; W. Marcus Weatherred, Judge.

Suit by the Adams-Childers Company against the Diamond Mill Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Head, Dillard, Smith, Maxey & Head, of Sherman, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.

J. K. Baker, of Coleman, for appellee.

BRADY, J.

Appellee, the Adams-Childers Company, a corporation, instituted this suit against appellant, the Diamond Mill Compony, also a corporation, for the sum of $600, afterwards increased to $800, as damages alleged to have resulted from the failure of appellant to deliver a car of flour and meal claimed to have been purchased by appellee from appellant. A plea of privilege was filed by appellant, which had its domicile in Grayson County, Tex. This plea was contested, and upon the conclusion of the evidence the court peremptorily instructed the jury to find against appellant as to venue of the case. The case on the merits was submitted to the jury on special issues, and upon the verdict judgment was rendered for appellee for the sum of $645.

The findings of the jury may be summarized as follows: That the letter hereinafter mentioned from appellant to Messrs. Adams & Childers, dated March 26, 1917, was intended by it as an offer to appellee to sell it a car of mill products, flour basis, at $9.50 per barrel; that the term "car of flour," as used in the letter, meant the same as the phrase "car of meal products," within the contemplation of appellee; that the order given by appellee to the salesman for appellant was an acceptance by appellee of the proposal made in the letter; that the salesman of appellant was not authorized by it to accept an order for a car of mill products as given by appellee, and that appellee knew at the time it gave such order that the salesman was not so authorized, but that appellant reserved the right to accept or reject the order; that the difference in the market price of the flour was $3 per barrel.

The contract sued upon and all material transactions connected therewith were in writing, and practically undisputed. The verdict of the jury is supported by evidence as to the issue of fact upon the meaning of the phrase "car of flour," and also as to the issues of fact with relation to the want of authority of appellant's salesman and agent, and appellee's knowledge of such lack of authority; the testimony upon these issues being indeed virtually uncontradicted.

The material facts, for the purposes of this appeal, may be stated as follows:

Appellee was a mercantile concern doing business in the town of Santa Anna, Coleman county, Tex., and had been a partnership for several years prior to this controversy, operating under the firm name of Adams & Childers. The partnership was incorporated in January, 1917, under the name of the Adams-Childers Company, and since such date there has never been any firm, partnership, or corporation at Santa Anna by the name of Adams & Childers. The incorporators and stockholders of the corporation were the former individual members of the partnership. Prior to the transactions involved in this suit appellant had frequent dealings with the partnership of Adams & Childers, which had purchased flour, meal, and other products from appellant on various occasions; and appellant knew nothing of the change from partnership to corporation, as far as the evidence shows.

There was some preliminary correspondence during March, 1917, between appellant and appellee in regard to prospective orders for flour. The first letter material to this inquiry is that of March 22, 1917, written by appellee to appellant. The letter is signed, "The Adams-Childers Company, by _________, Treasurer," and contains this statement:

"If you see fit to handle our account on fall terms, we will appreciate a line from you to that effect. However, it will be at least thirty days before we will need a car of flour."

In reply to this letter appellant on March 26 addressed a letter to "Messrs. Adams & Childers, Santa Anna, Tex.," which letter is as follows:

"We received your letter of the 22d, a few days ago, and in reply will say that we have no objection to giving you one or two cars of flour on fall terms, but the only basis on which we could quote you would be `regular.' In other words, we would not book flour for a longer period than thirty days.

"We suggest that you book a car of flour now at the present price of $9.50 basis, since it is your idea that you will need a car within thirty days. This price will be net, thirty days, interest at 8 per cent. after thirty days.

"Of course, you do not care to book any additional cars, as about the 1st of July new wheat will be on the market and flour should be lower. When that time comes, we can talk to you about additional bookings.

"Please let us have immediate advice if the booking we mentioned above is agreeable, as we will put out a basis of $9.80 or $10.00 if cash wheat advances a few cents more.

                   "Yours very truly
                "HGS-J               The Diamond Mill Co."
                

In the same mail there were one or two letters addressed to Mr. King, the traveling salesman of appellant, sent to him at Santa Anna, in care of Adams & Childers. Mr. Adams, the secretary-treasurer of appellee, handed these letters to Mr. King, saw him open them, and noticed that one of the letters was a carbon copy of the letter of March 26th from appellant. Mr. Adams then gave Mr. King an order for a car of mill products at Santa Anna, which order was made out in duplicate, on regular order blanks used by the salesman, and a duplicate copy furnished appellee and placed in its files. This order is dated March 27, 1917, and states, in substance, that the Diamond Mill Company has sold to Adams & Childers, at Santa Anna, one car of mill products, flour basis, $9.50, with specifications to follow. It further provides that the goods were to be shipped in 30 days, f. o. b. Sherman, freight allowed to destination. There is a blank space on the order for the terms of payment, but this space was not filled out, and no stipulation is contained in the order as to the terms of payment. The order upon its face contains this provision:

"This order subject to our acceptance. Read your order, as all conditions must be expressed in writing."

There is a space for the signature of the buyer, which was not filled out, and for the signature of the salesman, which was filled out with the name "King." This order was placed in the mails by Mr. King at Santa Anna, and was received by the appellant at Sherman.

The letter of March 26th from appellant to Messrs. Adams & Childers is claimed by appellee to have constituted a specific proposal from appellant, and the order of March 27th is claimed to have been an acceptance of the proposal; and these two instruments are relied upon as constituting the contract upon which this suit is based.

The next step in the correspondence was a letter, dated March 30, 1917, addressed by appellant to Adams & Childers, acknowledging receipt of the order of March 27th. In this...