Dutch Mill Gardens v. J. J. Grullemans & Sons, N. V. of Lisse, Holland
| Decision Date | 15 February 1951 |
| Docket Number | No. 12263,12263 |
| Citation | 238 S.W.2d 232 |
| Parties | DUTCH MILL GARDENS v. J. J. GRULLEMANS & SONS, N. V. OF LISSE, HOLLAND. |
| Court | Texas Court of Appeals |
Allen, Smith, Neal & Lehmann and Ira J. Allen, all of Houston, for appellant.
Ross, Banks & May and Geo. B. Banks, all of Houston, for appellee.
This appeal is from a judgment for $1683.23, of the 113th District Court of Harris County, Texas, entered upon a jury's verdict for that sum, which the court at the close of all the evidence had instructed the jury to return, in favor of the appellee, against the appellant, as the agreed purchase-price of certain flowerbulbs, shipped f. o. b. by the former from Lisse, Holland, to the latter at Houston, Texas, upon written orders between them.
There had been between the parties two orders for bulbs; the first one, covering hyacinths, tulips, and narcissuses; the second, an assortment of amaryllis bulbs; only the first order was involved in this controversy, and a photostatic copy of it was brought up as a part of the record in this appeal.
In response to the appellee's suit for such claimed and agreed purchase-price for the hyacinth, tulip, and narcissus bulbs, asserted by the appellee to have been delivered to and accepted by the appellant at Houston, Texas, upon the written order therefor, the appellant denied liability and contended that there was a total failure of consideration to it for such bulbs, in that they had been shown to be wholly worthless as such, at Houston, hence the trial court had erred in refusing to submit to the jury at its request the question of whether or not such bulbs were so wholly useless.
In the state of the record brought here, it is determined that appellant's position cannot be sustained.
The written-order, upon which the bulbs were so shipped, was plain upon its face, and continued this express, printed provision, to-wit:
While appellant states its contention in three points, its sole challenge of the trial court's direction of the verdict, in essence, is that the evidence, despite the quoted provision of the contract-raised an issue-of-fact for the jury as to whether or not there was such a complete failure of consideration for the bulbs.
This Court is unable to find such evidence; concluding rather that, if any at all, there was no more than a scintilla to...
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