Foley v. Storrie

• Decision Date: 04 October 1893
• Citation: 23 S.W. 442
• Parties: FOLEY v. STORRIE.
• Court: Texas Court of Appeals

23 S.W. 442

FOLEY v. STORRIE.

Court of Civil Appeals of Texas.

October 4, 1893.

Appeal from McLennan county court; W. H. Jenkins, Judge.

Action by J. C. Foley against R. C. Storrie for the price of wood sold and delivered. Judgment for defendant. Plaintiff appeals. Reversed.

D. H. Hardy, for appellant.

COLLARD, J.

It was error to instruct the jury that there was no consideration for the contract sued on, and the assignment must be sustained. On the 1st day of February, 1890, plaintiff and defendant entered into a contract, by which plaintiff was to deliver to defendant 1,000 cords of cedar wood on railroad cars near Fowler, in Bosque county, to commence work at once, load first car in 15 days from date, and load one car each day thereafter for the first five days, to increase the loads to thirty cords per day by March 1st, and to continue delivering thirty cords per day; Storrie, the defendant, to pay freight and expenses of shipment to Waco, and of unloading; all duty of Foley, the plaintiff, to end when the cars were loaded at or near Fowler; for which defendant was to pay four dollars per cord, as stated in the contract. It was stipulated that Foley "should not be held responsible for failure of the railroad company to furnish cars in amount sufficient to handle the above-mentioned number of cords per day, nor for delays occasioned by the weather or other matters beyond human control." The terms of the contract required its performance by Foley by the 1st day of April, 1890. No cars were furnished by the railroad company for loading the wood until about the 10th or 11th of April, and plaintiff delivered no wood under the contract. On March 28, 1890, plaintiff wrote to Storrie at Waco: "I have secured twelve more men, making twenty in all, chopping; but I am not having good success holding them. They cannot make wages cutting at $1.00 per cord this weather, and pay board. Working with the force I now have, and the price I am now getting, I am simply giving you the wood for nothing, and it would require all summer to complete the contract. If you can stand a raise of $1.00 per cord, I can pay choppers a little better wages, and push the work through; but if you cannot, I will be compelled to stop work, as I cannot pay choppers wages enough to induce them to stay in the woods this warm weather; and without choppers, of course I cannot do anything. I am sorry I am compelled to demand this, but it has got so late in the season that it is almost impossible to get hands unless you can pay them decent wages, and this I cannot afford to do at present price. Please let me hear from you as early as possible." On April 5th, defendant, Storrie, replied to the foregoing letter as follows: "Yours of the 27th inst. at hand, and would state that I will pay you $5.00 per cord. Please hurry up and ship wood. Let me hear from you soon." Plaintiff delivered, after this, wood to the amount of 100 cords or more, and has brought suit for same on the contract as shown by the foregoing correspondence. Defendant set up the contract of February 1st, claiming...