Farmers' Mill & Elevator Co. v. Hodges

• Decision Date: 02 April 1924
• Docket Number: (No. 522-3982.)
• Citation: 260 S.W. 166
• Parties: FARMERS' MILL & ELEVATOR CO. v. HODGES et al.
• Court: Texas Supreme Court

Page 166

260 S.W. 166

FARMERS' MILL & ELEVATOR CO. v. HODGES et al.

(No. 522-3982.)

Commission of Appeals of Texas, Section A.

April 2, 1924.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by C. D. Hodges and others against the Farmers' Mill & Elevator Company. A judgment for plaintiffs was affirmed in part and remanded in part by the Court of Civil Appeals (248 S. W. 72), and defendant brings error. Judgments of Court of Civil Appeals and district court reversed, and cause remanded to district court.

Underwood, Jackson & Johnson, of Amarillo, for plaintiff in error.

Veale & Lumpkin, of Amarillo, for defendants in error.

BISHOP, J.

Plaintiff in error, Farmers' Mill & Elevator Company, through its manager, R. C. Lawver, on September 13, 1920, entered into a contract with the defendants in error, C. D. Hodges, B. W. Hodges, and J. N. Hodges, whereby it purchased from them their crop of maize which was not then threshed, estimated at 3,000 bushels, less 400 bushels which they were to retain for feed, at the agreed price of $1.50 per hundred pounds, as evidenced by the following instrument in writing executed by R. C. Lawver for and in behalf of said company and by C. D. Hodges for himself, B. W. Hodges and J. N. Hodges, to wit:

"White Deer, Texas, September 13, 1920.

"This confirms purchase of crop of maize, estimated to be around 3,000 bu., 400 bu. to be retained for feed from C. D. Hodges & B. W. Hodges & J. N. Hodges, at $1.50 per hundred, to be delivered as soon as can be threshed in good shape.

                               [Signed] R. C. Lawver
                                       "C. D. Hodges."
                

This maize was raised by C. D. Hodges and B. W. Hodges on land belonging to their father, J. N. Hodges, under a rental agreement whereby their father was to receive one-third of the maize as rent. C. D. Hodges and B. W. Hodges each rented separate tracts of land from their father, and were not interested jointly in the maize raised. They threshed this maize about November 20, 1920, and then offered to deliver to plaintiff in error, 2,600 bushels under their agreement, and were advised that it could not take it at that time, and that it would notify them when to make delivery. Having received no further notice they again on January 14, 1921, took the matter up with its manager, Lawver, and he refused to accept delivery of the maize, without giving any reason for the refusal other than that maize at that time was only worth 60 cents per hundred pounds.

Defendants in error filed suit for damages for breach of this contract, and on trial recovered a judgment for $1,170 rendered on the verdict of a jury on special issues. The only evidence introduced as to the market value of maize at the time the contract was breached by plaintiff in error was the statement of the manager, Lawver, that maize was only worth 60 cents per hundred pounds and the testimony of Lawver, on the trial, that between September 13, 1920, and the middle of January, 1921, the market value of maize declined from possibly 30 to 50 cents per hundred pounds.

On appeal the Court of Civil Appeals, in its original opinion, reversed and remanded the cause, holding that the trial court erred in admitting this testimony of Lawver, who at the time of trial was not manager of plaintiff in error, he having stated that he did not know or remember the market value of maize on January 14, 1921, and also holding that the statement of Lawver (when acting for plaintiff in error as its manager he notified them that his company would not accept the maize, that same was only worth 60 cents per hundred pounds) was not admissible as evidence.

On second motion for rehearing the Court says:

"Upon a review of the record our former judgment, reversing and remanding the entire case, is hereby modified, in that the judgment is affirmed as to all of the issues save and except the issue as to the market value of the maize on January 14 and 15, 1921. We have heretofore held that the evidence is not sufficient to establish market value at White Deer, on the above date. and reversed the judgment upon that ground. As to the other issues, the case seems to have been thoroughly developed, and the judgment as to them is supported by ample evidence. Rule 62a for the Courts of Civil Appeals provides that, if it appear to this court that the...