Geistweidt v. Mann

Decision Date14 October 1896
Citation37 S.W. 372
PartiesGEISTWEIDT v. MANN.
CourtTexas Court of Appeals

Appeal from district court, Menard county; W. M. Allison, Judge.

Action by W. Geistweidt against Felix Mann. There was a judgment for defendant, and plaintiff appeals. Reversed.

M. Fulton, for appellant. W. A. Williamson and L. W. Ainsworth, for appellee.

FLY, J.

Appellant sued appellee to recover $457, alleged to be due on certain cattle delivered to appellee on April 24, 1892. The petition alleged that one Wheeler owned certain cattle on which appellant and others held a mortgage; that, with the consent of the mortgagees, of whom appellant was the agent and representative, Wheeler was permitted to sell the cattle to appellee, the proceeds therefrom to be paid to appellant as the representative of the mortgagees; that appellee had agreed to this, but had failed and refused to pay a balance of $457 due on the cattle. Appellee pleaded limitation of two years, that there was no privity of contract between him and appellant, and pleaded in reconvention damages accruing to him by reason of a failure on the part of Wheeler to comply with his contract. An exception was sustained to the plea in reconvention. The case was tried with a jury, and resulted in a verdict and judgment for appellee.

We do not desire to discuss the facts, but will state a few of them that we deem necessary to elucidate the position of the court. Wheeler made a contract with appellee to deliver him certain cattle at a certain date, and appellee advanced him $2,500 on the trade. The cattle had been previously mortgaged to appellant and others, whom appellant represented, but they ratified the sale with the understanding and agreement of all parties that the balance to become due on the cattle was to be paid to the mortgagees instead of Wheeler. Appellee paid appellant $400 on the balance due on the cattle, but refused to pay the remaining sum of $457. The last of the cattle were delivered by appellant, representing Wheeler and the mortgagees. The cattle were not delivered at the time contracted, but there was a verbal agreement by which the last of the cattle were to be delivered on April 24, 1892, and they were so delivered. Under the verbal agreement made between Wheeler and appellee, the balance on the cattle did not become due until April 24, 1892, when the cattle reached Brady Creek. Appellee swore that he told Wheeler that he would only pay for the cattle that were gotten to Brady Creek....

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7 cases
  • Nebola v. Minnesota Iron Company
    • United States
    • Minnesota Supreme Court
    • July 19, 1907
    ... ... 158, 22 N.E. 629, 5 L.R.A. 844, 15 Am ... St. 183; Bemis v. Leonard, 118 Mass. 502, 19 Am ... 470; Davison v. Budlong, 40 Hun, 245; Geistweidt ... v. Mann (Tex. Civ. App.) 37 S.W. 372; Smith v ... Dickey, 74 Tex. 61, 11 S.W. 1049; McCulloch v ... Hopper, 47 N.J.L. 189, 54 Am. 146; ... ...
  • Price v. Wood
    • United States
    • Texas Court of Appeals
    • November 21, 1935
    ...83 Tex. 452, 18 S.W. 743, 15 L.R. A. 639, 29 Am.St.Rep. 660), it is clear, under the rules controlling in such cases (Geistweidt v. Mann [Tex.Civ.App.] 37 S. W. 372; Watkins v. Willis, 58 Tex. [521] 523; Smith v. Dickey, 74 Tex. 61, 11 S.W. 1049), that appellee's cause of action accrued Oct......
  • Key v. Forshagen
    • United States
    • Texas Court of Appeals
    • January 28, 1933
    ...6 Tex. Jur. 680, 878; Standard v. Thurmond (Tex. Civ. App.) 151 S. W. 627; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Geistweidt v. Mann (Tex. Civ. App.) 37 S. W. 372; Payne v. Wittenberg (Tex. Civ. App.) 239 S. W. 224. The suit was filed within four years from the time the cause of action......
  • Green v. Gregory
    • United States
    • Texas Court of Appeals
    • January 10, 1912
    ...in 1908, and this suit was instituted on September 14, 1909, and the claim was therefore not barred by limitation. The case of Geistweidt v. Mann, 37 S. W. 372, decided by this court, and the only Texas case relied on by appellant, has no application whatever to the facts of this The fifth,......
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