Exporters' & Traders' Compress & W. Co. v. Spivey

• Decision Date: 24 January 1923
• Docket Number: (No. 6542.)
• Citation: Exporters' & Traders' Compress & W. Co. v. Spivey, 249 S.W. 1086 (Tex. App. 1923)
• Parties: EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SPIVEY.
• Court: Texas Court of Appeals

249 S.W. 1086

EXPORTERS' & TRADERS' COMPRESS & WAREHOUSE CO. v. SPIVEY.

(No. 6542.)

Court of Civil Appeals of Texas. Austin.

January 24, 1923.

Rehearing Denied February 28, 1923.

Appeal from McLennan County Court; Giles P. Lester, Judge.

Action by Jay Spivey against the Exporters' & Traders' Compress & Warehouse Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. O. Stotter and Sleeper, Boynton & Kendall, all of Waco, for appellant.

Johnston & Hughes, of Waco, for appellee.

BLAIR, J.

This is an appeal by the Exporters' & Traders' Compress & Warehouse Company from a judgment rendered against them in the county court of McLennan county, in the sum of $111.19, and in favor of Jay Spivey, the appellee. The case having originated in the justice court, there were no written pleadings filed. Appellee pleaded, however, that during the fall of 1919 he stored with appellant quite a number of bales of cotton, on the basis of 25 cents per month per bale, which cotton remained in storage until he sold the same to Novich, in November, 1920, and that he paid the storage by permitting Novich to deduct it from the price of the cotton at the time of the sale thereof, and that appellant demanded of him $111.19 in excess of the agreed rate.

Appellant admitted that, when the appellee stored said cotton in its warehouse, the storage rates were 25 cents per bale per month, but that on August 1st it increased its rate to 2 cents per day per bale, and that notices were mailed to all parties having cotton in the warehouse, and by posting and publishing notices in the newspapers and around the premises of said warehouse, alleging that appellee received notice in one or the other of these methods. Appellee denied having received any notice of an increase in rates.

The facts proved in this case were as follows:

Appellee stored several hundred bales of cotton with appellant, in its warehouse at Waco, during the fall of 1919, at an agreed rate of 25 cents per bale per month, which rate was to continue in effect until notice by appellant of any change thereof. That said cotton remained in storage until November, 1920, when appellee sold it to one Novich. At the time of storage appellant issued to appellee what was known as its negotiable warehouse receipt, which, in the course of cotton dealings, transfers the title to the cotton by delivering said receipt. That by the usages and customs of the cotton business each purchaser ascertained the amount of storage then due, and deducted the same from the purchase price of said cotton; the payment of the storage to the warehouseman being made at the time of the moving of said cotton represented by said receipt rather than at the time of each sale thereof.

At the time of the sale of the cotton by appellee to Novich, Novich called appellant by telephone, who informed him the amount of storage it claimed against appellee. Appellee stated at the time that it was too much, and asked to talk with appellant, and stated to appellant that the fees were too much under their contract, and appellant claimed that it was entitled thereto by reason of an increase in rates. Appellee had no notice of such increase. Novich refused to take the cotton until said storage was paid, and in order to consummate his trade appellee paid the storage, and demanded of appellant a statement thereof, which was furnished some two days later. Appellee, through his attorneys, later asked for a reimbursement for the excess fees charged, which appellant refused to pay. This suit was brought for the recovery of the same.

There was no particular date agreed upon as to when the storage was to be paid, and the warehouseman looked primarily, if not solely, to the cotton, upon which he had a lien, for his storage, and delivered the cotton to any party presenting the negotiable storage receipt and paying the fees at the time of the moving of the cotton. The fees for said storage were not paid at the time of the institution of this suit by Novich, who purchased the cotton; nor does the record show whether they had been paid at all. Appellant testified that it was looking solely to the cotton for its storage charges.

Appellant presents to this court two propositions, wherein it alleges that the trial court erred, and asks this court to reverse and render said cause; the first proposition being as follows:

"Where a person having cotton stored in a warehouse sells it on his warehouse receipts, the buyer deducting a certain sum from the purchase money before paying it over to the seller, the sum deducted being the amount the warehouseman has informed the purchaser and seller is due as storage against the cotton sold, though this sum deducted is in excess of what is due under previous agreement between warehouseman and seller, the seller cannot recover such excess without first showing that the buyer has paid to the warehouseman the sum he deducted from the selling...