Gibson v. Lancaster

• Decision Date: 05 April 1897
• Citation: 39 S.W. 1078
• Parties: GIBSON v. LANCASTER et al.
• Court: Texas Supreme Court

Page 1078

39 S.W. 1078

GIBSON v. LANCASTER et al.

Supreme Court of Texas.

April 5, 1897.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Action by Lancaster Bros. against J. H. Gibson. From a judgment for defendant, plaintiffs appealed to the court of civil appeals, from which court the case is certified.

Edwin O. Harrell, for appellants. McCormick & Spence, for appellee.

GAINES, C. J.

The following question has been certified for our determination by the court of civil appeals for the Fourth supreme judicial district:

"In April, 1894, H. C. Travers, in the name of the Texas Box & Crate Factory, ordered a car load of lumber from Lancaster Bros., to be shipped from Marshall to Dallas, Texas, and delivered there, free on board of cars, to said Texas Box & Crate Factory, at $12.50 per thousand feet. There was no such concern as the Texas Box & Crate Factory in existence, and such name was used by Travers, who was insolvent, in making the order above stated, for the fraudulent purpose of obtaining possession of the lumber without paying for it. Lancaster Bros., under the belief that the order had been made by a solvent corporation of the name used, and without knowledge of Travers' insolvency or of his connection with the matter, shipped the lumber in response to the order. When it arrived in Dallas it was, by the railroad company over whose road it was shipped, on the order of Travers, made in the name of the Texas Box & Crate Factory, delivered to one O. F. Parks, who claimed that he purchased it from the consignee; Travers or Parks paying the railroad company the freight, which, for convenience, it was understood, when the lumber was ordered, should be paid by the consignee, and credited on the bill as part of the purchase money. After Parks obtained possession of the lumber, he sold it to J. H. Gibson. If Parks bought the lumber as claimed, it was with full knowledge of the facts constituting its fraudulent procurement by his vendor from its owners. When Gibson obtained the lumber from Parks, though he may have paid value for it, he either knew of the fraudulent means by which it had been obtained, or was in possession of such facts as would put an ordinarily prudent man upon inquiry which, if pursued, would lead to knowledge of the fact of such fraudulent intention. Upon learning of the fraud practiced upon them, Lancaster Bros. brought suit, without tendering the money paid for the freight, against Travers and Parks, for a rescission of the contract under which their property was obtained, and to recover its possession. It was seized by virtue of a writ of sequestration issued in the case, and Gibson filed his claimant's affidavit and bond for the trial of the right of property.

"Question: Did the payment of the freight due the railroad on the lumber, under the circumstances mentioned, preclude Lancaster Bros. from rescinding the contract and recovering their property?"

We understand one of "the circumstances mentioned" in the statement accompanying the question to be the...