Early-Foster Co. v. W. F. Klump & Co.

• Decision Date: 19 January 1921
• Docket Number: (No. 6237.)
• Parties: EARLY-FOSTER CO. v. W. F. KLUMP & CO.
• Court: Texas Court of Appeals

229 S.W. 1015

EARLY-FOSTER CO. v. W. F. KLUMP & CO.

(No. 6237.)

Court of Civil Appeals of Texas. Austin.

January 19, 1921.

Rehearing Granted March 16, 1921.

Appeal from District Court, McLennan County; Erwin J. Clark, Judge.

Action by Early-Foster Company against W. F. Klump & Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Tom L. McCullough, of Dallas, and J. N. Gallagher, of Waco, for appellant.

O. L. Stribling, of Waco, for appellee.

BRADY, J.

Early-Foster Company, a corporation, sued W. F. Klump, doing business under the firm name of W. F. Klump & Co., to recover an alleged balance of about $1,200, claimed to be due for the price of 2,000 bales of cotton linters sold by appellant to appellee, under contracts dated December 1 and December 7, 1916. Appellee denied liability, and specially answered that he had fully paid the amount due on the contracts, alleging that such payments were made upon drafts drawn by appellant with bills of lading attached through banks in New Orleans, aggregating the sum of about $70,000; that the banks, acting for appellant in the collection of the drafts, accepted this sum in full payment of the amount due by appellee on account of the purchase and sale of the linters; that, upon the payment of this amount, the New Orleans banks delivered the bills of lading and drafts to appellee, and canceled and marked paid the drafts, and that thereafter the appellant, in due course of business, received and accepted the sum so paid in full payment and settlement of appellee's indebtedness, with full knowledge that the sum paid by appellee was in full of the contract. It was further pleaded by appellee that there was a dispute as to the correct amount due, and especially as to certain items making up the sum total of the drafts, which were claimed to be overcharges, but which were authorized by appellant to be deducted from the face of the drafts, and that the acceptance of the balance, and the other facts alleged, constituted a full and complete accord and satisfaction. At the conclusion of plaintiff's testimony, the trial court instructed a verdict for the defendant, upon which judgment was rendered for appellee.

The contracts in question were effected by interchange of telegrams, the linters being sold at a fixed price per pound, f. o. b. Texas common points. The cotton was shipped in due course, and the drafts with bills of lading attached were drawn and sent to New Orleans banks, where appellee was doing business. A controversy arose over certain items included in the amount of the drafts, with relation to certain charges which were claimed by appellee to be unauthorized by the contract, and illegal and excessive demands.

The telegrams and letters, relating to appellee's demands for deductions and appellant's allowance of the same, are as follows:

"New Orleans, La. 338 p. m. Dec. 15, 1916. Early Foster Co. Waco. Drafts here but all advance charges on ladings must be reduced also freight allowance must be made on all stock moving out of Waco over other lines than Cotton Belt also charge of one seventy-one account three hundred Corsicans must be deducted and must have sworn weights as instructed. 4:03 p. m. W. F. Klump & Co."

"Waco, Tex. 408 P. Dec. 15, 1916. W. F. Klump and Co. New Orleans, La. Bank wires you refuse pay our draft covering five hundred bales linters account advance charges forty dollars which is demurrage accrued while cars held here pending shipping instructions from you weight sheets attached are compress weights and oked by M. Tonnellet please pay our draft answer. Early Foster Co. 430 P."

"Waco, Texas, 410 P. M. Dec. 15, 1916. W. F. Klump & Co. New Orleans, La. Bank wires you returned our draft twenty-four thousand dollars account amount incorrect and routing not per your instructions all shipments routed teepee per your instructions. We sold goods fob Texas common points and made some shipments from points taking rate twelve and half cents less than common points. Please advise quick what amount should draft be for. Early Foster Co. 424 P. M."

"Waco, Tex. 421 P. Dec. 15, 1916. W. F. Klump and Co. New Orleans, La. Answering we sold linters adjusted intoxicate five hundred seventy-five bales concentrated Waco via Katy and shipments made out same way but all shipments made teepee delivery per your instructions all weights furnished were compress and public weighers weights accepted by Tonnelet can forward you duplicates sworn to if we have to make deduction it will be under protest and we will arbitrate. Early Foster Co. 442 P. M."

"New Orleans, La. 506 P. M. Dec. 15, 1916. Early Foster Co. Waco. Full shipping instructions given you within contract time arrange all papers correctly and drafts will be paid duplicate sworn certificates acceptable instructed you to route linters out of Waco Cotton Belt and Texas Pacific. W. F. Klump & Co. 522 P. M."

"Waco, Texas, Dec. 15, 1916. W. F. Klump and Co. New Orleans, La. Answering we will forward you duplicate sworn weights linters shipped as wired five hundred seventy-five bales were concentrated Waco but shipped teepee delivery we sold linters fob Texas common points and if we had made shipments from points taking excess freight we would have had to pay same we perfectly agreeable arbitration either according Texas Cotton Seed Crushers rules or three disinterested parties. Early Foster Co. 8:14 P. M."

"New Orleans, La., 233 P. M. Dec. 16. Early Foster Co. Waco, Texas. We bought fob common points we control routing deduct all charges per our wire yesterday. W. F. Klump & Co. 235 P."

"Waco, Texas, 3 P. M. Dec. 16, 1916. W. F. Klump and Co. New Orleans, La. Answering five hundred seventy-five bales linters shipped you originated different points for convenience we shipped them into Waco and stored them and reshipped out of here and shipments had to go out via same roads over which they arrived in order concentration apply we however instructed delivery via teepee per your instructions why not agree arbitration. Early Foster 338 P."

"Waco, Texas, Dec. 16, 1916. W. F. Klump & Co. New Orleans, La. Gentlemen: Referring to exchange of wires, there was no use in our having to send all these telegrams when you were so familiar with the trade and understood the situation clearly. We held the linters in the cars here about seven or eight days waiting for you to give us instructions, and you did not wire us the instructions until two days after the expiration of the contract time, and then changed them two or three times. We would not have sold these linters at the price we did if it had not been that we wanted to move them immediately. As to the difference in freight, you know when a contract reads fob Texas common points, it means that the common point rate to New Orleans applies, and anything in excess of that rate we would have to take care of, and we would be entitled to anything under that. As advised you, 575 bales of the linters were concentrated in Waco, and we had to route them out the same way they came in, in order to have concentration apply. We are sending you through the bank today duplicate weight of the linters, sworn to. Now lets do not have any more bother about this. We are agreeable to doing what our contract calls for, and as advised, will be glad to leave the matter to three disinterested parties, that is we select one, you select one, and they select a third. We don't want anything but what belongs to us. The writer had thought he would visit you within the next few days, but at the moment, does not believe he will be able to go East. Yours very respectfully, Early-Foster Company, per H. M. Foster."

"New Orleans, La. 1035 A. Dec. 18. Early Foster Co., Waco, Texas. Several cars here please arrange papers quickly as instructed avoid expenses. W. F. Klump & Co. 1044 A. M."

"Waco, Tex. 156 P. Dec. 18, 1916. W. F. Klump and Co. New Orleans, La. Answering any allowance we make is under protest we instructing bank accordingly. Early Foster Co. 207 P."

"Waco, Texas, 245 P. M. Dec. 18, 1916. W. F. Klump and Co. New Orleans, La. Have wired bank there on payment all our drafts on you deduct four hundred fifty dollars two cents which we understand is amount you demand this not according to sale and we do this under protest. Early Foster Co. 255 P."

"Waco, Tex. 530 P. Dec. 18, 1916. W. F. Klump and Co. New Orleans, La. Wire us exact amount you wish deducted from our drafts we dont understand bank wires as advised any deduction is under protest. Early Foster Co. 556 P."

"New Orleans, La. Night Letter. Dec. 18, 1916. Early-Foster Co. Waco. Invoice seven thirty-four charges ladings sixty-one dollars over charges one seventy-one thirty-nine extra freight caused by improper routing from Waco hundred eleven seventy-two next invoices advances forty dollars improper routing one sixty-six fifty-one next over charge one forty-eight forty-five improper routing one seventy-five forty-three next improper routing hundred nine eighty-six next overcharge twenty-nine eighteen. W. F. Klump & Co. 755 A. M."

"Waco, Texas, Dec. 19, 1916. The Commercial National Bank, New Orleans, La. Referring to your telegram of today reduce Klump draft $344.11. Central Texas Exchange National Bank."

"Waco, Tex. Dec. 18, 1916. 250 P Whitney Central Natl. Bank, New Orleans, La. Upon payment all Klump drafts ours fourteenth sixteenth deduct two hundred twenty-five dollars two cents wire immediately if accepted or not. First State Bank and Trust Co."

"Waco, Tex. 916 A Dec. 19, 1916. Whitney Central Natl. Bank, New Orleans, La. Collect Klump drafts less total deduction of seven hundred seventy-nine dollars twenty-nine cents on four drafts as per your last wire payment thanks. First State Bank & Trust Co."

On December 19, 1916, and after the drafts had been paid by appellee, appellant brought its suit for the alleged balance, and attached certain linters claimed to belong to appellee at Waco, Tex.

Appella...