F. Groos & Co. v. Brewster

• Decision Date: 23 December 1903
• Citation: 78 S.W. 359
• Parties: F. GROOS & CO. v. BREWSTER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 359

F. GROOS & CO. v. BREWSTER.^*

Court of Civil Appeals of Texas.

December 23, 1903.

Appeal from District Court, Bexar County; S. J. Brooks, Judge.

Action by C. G. Brewster against F. Groos & Co. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Webb & Greth and Geo. C. Altgelt, for appellants. Chas. W. Ogden, Terrell & Terrell, and W. H. Lipscomb, for appellee.

NEILL, J.

During the months of April, May, and June, 1897, the J. L. S. Hunt Company, a private corporation, shipped to appellee, at Laredo, Tex., on various days during that time, 33 car loads of corn, and drew its drafts for each car load (33 in number) on appellee, payable to the order of said company, with bills of lading attached, aggregating $9,041.90. The drafts with bills of lading attached were then assigned and delivered by the J. L. S. Hunt Company to appellants, F. Groos & Co., partners doing a banking business in the city of San Antonio, Tex., who by virtue of such assignment became the legal holders thereof. The appellee, C. G. Brewster, was then a commission merchant doing business in Laredo, Tex., and had theretofore handled corn on commission for the Hunt Company. But at the time these shipments were made, and drafts drawn, he had ceased to do business for said company. He had not purchased the corn, or any part thereof, nor authorized its shipment or consignment to him, nor accepted or in any way obligated himself to pay said drafts, or any of them, or to receive said shipments of corn. F. Groos & Co. transmitted the drafts, with bills of lading attached, to the Milmo National Bank, at Laredo, for collection. The appellee, not having purchased, ordered, or agreed to receive the corn, refused to accept or honor any of the drafts. Twenty-five car loads of the corn, having arrived at Laredo, were becoming heated and damaged; and appellee having refused to receive the shipments, which facts being made known to appellants, they on May 27, 1897, wrote to the Milmo National Bank:

"San Antonio, Texas, May 27, 1897. Milmo Natl. Bank, Laredo, Texas—Dear Sir: A number of cars of corn covered by bills of lading attached to drafts on C. G. Brewster sent you at various times, having been sold at a reduced price from original figures; and in paying for said drafts Mr. Brewster is to draw on the J. L. S. Hunt Company for the difference of value of the corn, which said drafts you are hereby authorized to accept as part payment of such collections. Respectfully, F. Groos & Co."

When this letter was written, appellants knew that none of the cars of corn had been sold for less than the amounts drawn for, or at any price. Their purpose in writing it was to authorize such sales and such returns therefor as the letter indicated. In view of these facts, their letter being shown by the Milmo Bank to appellee, it was construed by them to mean that Groos & Co. desired appellee to receive and sell the corn for them, and, when sold, that he should draw drafts on the Hunt Company, which they would accept in payment for the difference between amounts of original drafts on Brewster and what was realized from such sale. In view of the facts recited, which were known by appellants as well as by appellee and the Milmo National Bank, no other construction could have been placed upon the letter; i. e., if it was contemplated by the appellants that it should be acted upon at all. In carrying out such construction, the Milmo National Bank, acting for appellants, being unwilling to deliver the bills of lading to appellee, or allow the railroad company to deliver him the corn without his payment in full of the drafts attached thereto, arranged and agreed with him that he should first pay in full the several amounts for which the drafts were drawn; that the bills of lading should then be delivered to him, and he should receive the corn, and, after putting it in condition for sale, sell the same for the best obtainable price, and, should the proceeds of sale be less than the amounts for which the drafts were drawn, draw on the Hunt Company for the payment of the difference, it being understood from the letter that the drafts would be received by appellants for such payment. In pursuance of such arrangement and understanding, the appellee paid the original drafts drawn on him by the Hunt Company to the Milmo National Bank, who held them for appellants, in full; and, when paid, the full amount of the payments was remitted by the bank to appellants. The bills of lading were then turned over to appellee, and he received the corn from the railroad company, placed it in condition for sale, at a considerable expense to him, and from time to time sold same for the best prices obtainable. And as soon as he received the proceeds of sale, and was able to ascertain the difference between such proceeds and the amount he paid for the drafts, he drew drafts on the Hunt Company, payable to the order of the Milmo National Bank, with statements of sales attached thereto, for such difference— the sum of $1,772.41—being the difference between the drafts drawn on appellee for the 33 car loads (the 8 which arrived after, as well as the 25 which arrived before, the 27th of May, 1897) and the entire amount realized from their sale. The drafts drawn by appellee for such difference were sent by the Milmo National Bank to its correspondent in San Antonio for collection. The Hunt Company, upon whom they were drawn, failed and refused to pay them. This company was then, as well...