Fink v. San Augustine Grocery Co.

• Decision Date: 15 April 1914
• Docket Number: (No. 6527.)
• Citation: 167 S.W. 35
• Parties: FINK v. SAN AUGUSTINE GROCERY CO. et al.
• Court: Texas Court of Appeals

167 S.W. 35

FINK v. SAN AUGUSTINE GROCERY CO. et al.

(No. 6527.)

Court of Civil Appeals of Texas. Galveston.

April 15, 1914.

Rehearing Denied May 7, 1914.

Error to District Court, San Augustine County; L. D. Guinn, Special Judge.

Action by the San Augustine Grocery Company, as assignee of the San Augustine Lumber Company, against W. A. Fink, and another. Judgment for plaintiff, and defendant Fink brings error. Affirmed, and motion for rehearing overruled.

H. B. Short, of Center, and Foster & Davis, of San Augustine, for plaintiff in error. Davis & Ramsey, of San Augustine, for defendant in error.

PLEASANTS, C. J.

At a former day of this term we affirmed the judgment of the trial court in this case, without a written opinion. Plaintiff in error in due time filed motions for rehearing and for a written opinion. We have overruled both motions; but in view of the earnest insistence of counsel, in an able argument filed in support of said motions, we deem it proper to state the grounds of our conclusion that the judgment should be affirmed, and that the case was not one which required a written opinion by this court.

The suit was brought by the appellee, San Augustine Grocery Company, as assignee of the San Augustine Lumber Company, against appellant and the San Augustine Lumber Company, to recover the sum of $565.75 balance due of the purchase price of 157,275 feet of pine lumber sold and delivered by said lumber company to appellant.

Plaintiff's petition contains the following allegations: "Plaintiff further represents to the court that heretofore, to wit, on or about April 22, 1908, the defendant San Augustine Lumber Company and W. A. Fink entered into a written contract, by the terms of which the defendant San Augustine Lumber Company, through its duly authorized officer, F. P. Adams, and its agent, agreed, bound, and obligated itself to sell and deliver to the defendant W. A. Fink f. o. b. cars at the mill of defendant San Augustine Lumber Company, in the county of San Augustine and state of Texas, certain pine lumber at certain stipulated prices, as follows:" Here follows an itemized statement of the lumber included in said contract, and the prices agreed to be paid therefor by appellant. This statement shows that the lumber included in the contract aggregated 236,085 feet.

The petition continues: "The said defendant San Augustine Lumber Company further agreeing by terms of said contract to ship one car of lumber so sold, 1×4 and 1×8, at once, and balance as fast as can get out, and further agreeing to ship entire bill of lumber so sold and agreed to be shipped within four months, and in said contract acknowledging receipt, paid to it by said W. A. Fink, of the sum of $25; and the said defendant W. A. Fink agreed, bound, and obligated himself to pay to the defendant San Augustine Lumber Company, for said lumber so bought to be delivered, and which was delivered, the price per thousand feet as stipulated and set out in said contract, as above set out, to the San Augustine Lumber Company, and did pay, at the time of entering into said contract, the said sum of $25 cash, and further agreeing by the terms of said contract to pay to the said defendant San Augustine Lumber Company 80 per cent. on receipt of bill of lading, and the balance of 20 per cent. when the last two cars were shipped. Plaintiff further represents to the court that the defendant San Augustine Lumber Company, complying with the terms of said contract, did ship and deliver to the defendant W. A. Fink 11 cars of pine lumber on the dates as follows:" Then follows a statement of the various shipments made by the lumber company to appellant and the amount due upon each shipment. This statement shows that on various and sundry dates, beginning on April 29, 1908, and ending on August 19, 1908, the lumber company made shipments of lumber to appellant according to the terms of its contract, aggregating 157,275 feet, of the agreed value of $1,704.46.

It is then alleged that appellant had made payments to the lumber company under his contract as follows: "On April 22, A. D. 1908, the sum of $25; on May 30, A. D. 1908, the sum of $632.47; on June 30, A. D. 1908, the sum of $221.70; and on August 30, A. D. 1908, the sum of $259.54 — making the sum total of $1,138.71, and leaving a balance due on said contract of $565.75, which has long since been due and unpaid; and the defendant, W. A. Fink, though often requested, has failed and refused and still fails and refuses to pay same, to plaintiff's damage $1,000. Plaintiff further represents to the court that heretofore, to wit, on April 29, 1908, and on divers and sundry dates before and since said date the defendant San Augustine Lumber Company, at the special instance and request of the defendant W. A. Fink, and upon his written order and at the prices then and there agreed upon by and between them, sold and delivered to the said W. A. Fink 157,275 feet of pine lumber, amounting to the sum of $1,704.46, and on which said account against said W. A. Fink the said W. A. Fink has paid the sum of $1,138.71, leaving a balance due of $565.75, and all of which is fully set out in an itemized statement of said account, which is filed now among the papers of this cause and asked to be read into and made a part of this petition, and which said balance so shown to be due on said account has long since been due and unpaid, and the defendant W. A. Fink, though often requested, has failed and refused, and still fails and refuses, to pay same, to plaintiff's damage $1,000." It is then alleged that the lumber company had sold and transferred its said account for $565.75 against appellant to appellee, San Augustine Grocery Company, and had guaranteed in writing the payment of same.

The petition continues as follows: "Plaintiff further represents to the court that because of the order for said lumber by the defendant W. A. Fink, and because of the agreement as to the prices to be paid for said lumber by the defendant W. A. Fink, at the special instance and request of the said W. A. Fink, he (the said W. A. Fink) became liable and promised to pay to the said San Augustine Lumber Company the sums of money specified and set out in said account, and because of the sale and delivery of said account and contract by the defendant San Augustine Lumber Company, and its guaranty of the payment of same, each defendant, the San Augustine Lumber Company and W. A. Fink, became liable and promised to pay to plaintiff herein the sums of money specified and set out in said contract and account shown to be due, and for all of which plaintiff prays judgment. Wherefore plaintiff prays that defendants be cited to answer this petition; that, upon a final hearing of this cause, it have judgment for the sum of $565.75, with interest thereon at the rate of 6 per cent. per annum from April 22, 1908, for its damages, for all costs of suit, and for such other and further relief as it may be entitled to in law and equity and will ever pray."

The appellant answered by general demurrer and several special exceptions, one of which is as follows: "This defendant further specially excepts to plaintiff's petition for the reason that the same is ambiguous and inconsistent in that the plaintiff first declares and predicates its cause of action upon an alleged written contract between the San Augustine Lumber Company and this defendant, and then declares upon another and different contract involving the same lumber, and which is shown by the petition to be the same transaction as first set out, and also undertakes to declare upon a cause of action for lumber delivered by the San Augustine Lumber Company to this defendant at his special instance and request, the petition showing that the same transaction is involved, wherefore he prays a judgment of the court." He further answered by general denial and by special plea in which it is averred in substance that the lumber company failed and refused to ship him the whole quantity of lumber specified in said contract, and by reason thereof he was damaged in a sum larger than the amount of balance due said company on the lumber shipped him.

In reply to defendant's answer, plaintiff filed a supplemental...