Fay Fruit Co. v. Talerico

• Decision Date: 22 May 1901
• Citation: 63 S.W. 656
• Parties: FAY FRUIT CO. v. TALERICO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 656

63 S.W. 656

FAY FRUIT CO. v. TALERICO.¹

Court of Civil Appeals of Texas.

May 22, 1901.

Appeal from Bexar county court; R. B. Green, Judge.

Action by Frank Talerico against the Fay Fruit Company. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

This suit was brought by the appellee, Frank Talerico, against appellant, the Fay Fruit Company, to recover $537.47, alleged to have been paid by him for a car load of oranges, and for $325.80, freight alleged to have been paid by him on said car load, as well as for damages for breach of contract. The plaintiff alleged in his petition that on the 20th day of March, 1900, he ordered from the Fay Fruit Company, through its local agent in San Antonio, Tex., a certain car load of oranges, subject to inspection by him upon their arrival in the city of San Antonio; that it was agreed that when the oranges were inspected by him they were in a good merchantable condition; then, after their inspection and acceptance by him, he would pay the price for the oranges, to wit, $537.45, and the freight from the initial point to San Antonio, Tex., amounting to $325.80; and that the railroad company over whose road the shipment was made was instructed by the appellant company to permit him to inspect the oranges upon their arrival in San Antonio; that for the purpose of deceiving plaintiff as to the condition of the oranges, and to induce him to receive and accept the same, notwithstanding they were unsound and unmerchantable, the fruit company so loaded its car of oranges as to deceive him, and induce him to accept the oranges as sound; that the company shipped the oranges to "Shipper's Order, San Antonio, Texas," and drew upon plaintiff for the sum of $537.47, with bill of lading attached to the draft, with instructions to the bank to surrender bill of lading to plaintiff upon his payment of the draft; that, upon the arrival of the oranges, plaintiff, by mistake, paid the draft, took up the bill of lading, and unloaded the oranges, before he discovered they were unsound and unmerchantable, and that upon discovering their condition he rejected the fruit, and filed suit to recover the money paid by him, and for damages for breach of contract. The First National Bank of Los Angeles, Cal., the holder when paid, was also made a party defendant. The Fay Fruit Company, appellant, answered denying the right of plaintiff to recover the moneys expended by him, and the damages alleged for the breach of the contract, upon the ground that the oranges were sold subject to inspection by plaintiff at San Antonio, Tex., and that after the oranges arrived in San Antonio they were inspected by him, the draft and freight paid, and that the contract thereby became executed between the parties, and plaintiff estopped from denying that the company had complied with its contract, and from recovering damages arising from the alleged defective condition of the oranges. The Fay Fruit Company made the Galveston, Harrisburg & San Antonio Railway Company a party defendant, and asked judgment over against it, in the event judgment was recovered by plaintiff. The case was dismissed as to the First National Bank of Los Angeles, Cal., and a plea to the jurisdiction of the court, interposed by the railway company, was sustained. The case was then tried before a jury, resulting in a judgment upon their verdict in favor of plaintiff for $569.37, from which this appeal is prosecuted.

It is apparent from the pleadings, as well as the evidence, that the car load of oranges was sold by appellant's broker, in the city of San Antonio, with the express understanding that they were to be shipped from California to San Antonio, Tex., where they were to be inspected by the appellee, and received and paid for by him, if, upon inspection, they should prove satisfactory. The evidence shows...