Griffith v. Gohlman, Lester & Co.

• Decision Date: 12 June 1923
• Docket Number: (No. 248.)
• Citation: 253 S.W. 591
• Parties: GRIFFITH v. GOHLMAN, LESTER & CO.
• Court: Texas Court of Appeals

253 S.W. 591

GRIFFITH v. GOHLMAN, LESTER & CO.

(No. 248.)

Court of Civil Appeals of Texas. Beaumont.

June 12, 1923.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Gohlman, Lester & Co. against John Griffith. Judgment for plaintiffs, and defendant brings error. Reformed and affirmed.

J. E. Canfield, of Floresville, John W. Parker, of Houston, and Dibrell & Mosheim, of Seguin, for plaintiff in error.

Andrews, Streetman, Logue & Mobley, of Houston, for defendants in error.

O'QUINN, J.

We shall refer to defendants in error as plaintiffs and to plaintiff in error as defendant, that being their attitude in the court below.

Plaintiffs sued defendant in the district court of Harris county, and alleged that they resided in Harris county, and that defendant resided in Wilson county. For cause of action plaintiffs alleged that on September 4, 1913, and ever since said date, they were engaged in the business of cotton commission merchants at Houston, Texas, receiving, handling, caring for, and selling cotton for a commission, and that in the course of said business they were accustomed to advance money upon cotton consigned to them by various persons from various places in the state of Texas, holding said cotton as factors and commission merchants as security for the money advanced thereon. Plaintiffs further alleged that on September 3, 1913, and on divers dates thereafter, defendant made various consignments of cotton from Floresville, in Wilson county, Tex., to plaintiffs at Houston, Tex., and that the uniform method of handling said transactions was that the said defendant would deliver said shipments of cotton to the railroad company at Floresville, Tex., taking a bill of lading therefor, and consigning said cotton to himself at Houston, Tex., and then drawing his draft for the sum of money to be advanced thereon, payable to the order of the First National Bank of Floresville, and drawn against plaintiffs at Houston, Tex., attaching said draft to said bill of lading, and delivering same to the First National Bank of Floresville, which would send the same, with the bill of lading attached, through its regular banking connections for presentation to and collection from plaintiffs at Houston, Tex.; that in accordance with the method of transacting said business, defendant drew his several drafts, each and all of which were paid at Houston, Tex., by plaintiffs, giving itemized statement of said drafts, which, with interest thereon at the rate of 6 per cent, per annum, amounted to $154,931.89 on July 27, 1914; that on said date defendant was entitled to certain credits by reason of the proceeds of cotton shipped as aforesaid to plaintiffs, which, being deducted from said indebtedness on November 5, 1914, left defendant owing plaintiffs the sum of $45,702.39.

Plaintiffs further alleged that, in order to secure the payment of said sum, or of any sum which defendant might be owing to plaintiffs on account of the transactions aforesaid, defendant transferred and delivered to plaintiffs certain certificates evidencing ownership of capital stock in certain corporations (giving a list of same), and that said certificates were in the possession of plaintiffs, and that they had and held a pledgee's lien upon the same to secure their said debt, and prayed for foreclosure of said lien.

Defendant in proper time filed his plea of privilege to be sued in the county of his residence. This plea was heard and considered by the court, and on February 19, 1915, in advance of the hearing of the case on its merits, was overruled, to which judgment of the court in overruling said plea defendant duly excepted, and a bill of exception was duly taken and allowed. No further action as to the plea of privilege is shown, but there was a trial before a jury in the district court of Harris county January 6, 1916, a verdict upon special issues returned, and judgment rendered thereon in favor of plaintiffs for the amount sued for. Defendant appealed the case to the Court of Civil Appeals by writ of error, where the case was reversed upon the assignment of error as to the overruling of the plea of privilege, and remanded same, without passing upon the other assignments of error, to the district court of Harris county, with instructions. See 200 S. W. 233. Plaintiffs secured a writ of error to the Supreme Court, which court reversed the judgment of the Court of Civil Appeals and remanded the cause to said court for further consideration. See 245 S. W. 233.

To the cause of action defendant answered by general demurrer, special exceptions, admitted the dealings pleaded by plaintiffs, and the alleged amount of indebtedness, $154,931.89, but denied the correctness of the credits as stated by plaintiffs, and answered that instead of being indebted to plaintiffs in the sum by them claimed, that they (plaintiffs) were due and owing to him the sum of $4,480.25. Defendant specially pleaded that, beginning with September 3, 1913, and ending November 3, 1913, he shipped and delivered to plaintiffs, at Houston, Tex., 2,291 bales of cotton, and in October, 1913, instructed plaintiffs to sell for his account 1,302 bales of said cotton, which were of high grade and could have been sold in the market at Houston at any time between September 4 and November 3, 1913, for 14 cents on a basis of middling, at an average of 25 points off, or 13¾ cents per pound, amounting to $93,988.12; that plaintiffs willfully, fraudulently, and negligently failed and refused to sell said 1,302 bales of cotton as they were instructed to do by defendant, and as they were in law bound to do, and therefore held the said cotton at their own risk, and subsequently disposed of same for less than half the price they could have sold same for if they had obeyed defendant's instructions, and denied that he was indebted to plaintiffs in any sum, but that they were indebted to him in the sum of $4,480.25.

Defendant further answered, and admitted that he had deposited with plaintiffs the certificates of stock mentioned in plaintiffs' petition, for the purpose of securing the advancements made by plaintiffs to him in case cotton declined in value, but said that, if plaintiffs had suffered any loss by reason of a decline in the price of cotton, such loss was occasioned by plaintiffs' failure and refusal to obey his instructions to sell said 1,302 bales of cotton, and hence he was entitled to receive back from plaintiffs said certificates, and by fully pleaded cross-action claimed plaintiffs were due him the sum of $11,414.07 over and above any and all indebtedness he was then due plaintiffs. Defendant further pleaded that, if he should not be entitled to recover as aforesaid for the failure of plaintiffs to sell his said cotton during the month of October and the first part of the month of November, 1913, then he alleged that on July 8, 1914, he had with plaintiffs 1,302 bales of cotton, which he requested and instructed the plaintiffs to sell, and which they could have sold at 13¾ cents per pound on the market at Houston on said date, but that plaintiffs failed and refused to sell said cotton, and failed and refused to obey his said instructions, and held same against his will and against his instructions until November 5, 1914, at which time, against his will, and without the knowledge of or consultation with defendant, they sold same for less than one-half of what it would have brought had it been sold on said July 8, 1914, or at any time between July 8 and August 2, 1914, as they were instructed to do, by reason of which defendant was damaged in the sum of $49,431.49, which, if deducted from the amount claimed by plaintiffs, would make them owing him the sum of $4,840.25; that, if plaintiffs had obeyed the instructions of defendant to sell said cotton at said time, the same could have been sold at a net profit to defendant of $4,840.25 over and above any and all indebtedness of defendant to plaintiffs, by reason of which plaintiffs were due and owing defendant said sum.

By amended answer, by way of cross-action, defendant alleged that he was entitled to recover of plaintiffs the sum of $12,211, with interest thereon at the rate of 6 per cent. per annum from November 5, 1914, over and above any and all indebtedness owing by him to plaintiffs, and to the return of his said stock certificates.

There were a number of supplemental petitions and supplemental answers filed by the parties, which were in the nature of specific denials, which we do not deem necessary to more specifically set out. The case was tried before a jury upon special issues. The court charged the jury as follows:

"Gentlemen of the Jury: This case will be submitted to you upon what is known as `special issues,' each of which you will answer according as you find the facts to be from the evidence, writing your answers upon the separate sheet of paper which is furnished herewith for that purpose, and having your foreman sign same.

"Special issue No. 1: Did the plaintiffs use reasonable diligence to comply with the instructions given by defendants on July 8, 1914, to sell all his cotton? Answer `Yes' or `No.'

"In connection with the above issue, you are instructed that by the term `reasonable diligence,' as used therein, is meant such diligence as a man of ordinary prudence would have used under the same or similar circumstances. If you answer the above issue `Yes,' then you need not answer any other question submitted to you, but if you answer said issue `No' then you will answer the following issue:

"Special issue No. 2: If the plaintiffs had used reasonable diligence to comply with the instructions given by defendant on July 8, 1914, to sell his cotton, the evidence showing the number of bales then on hand to have been 1302 bales, could the plaintiffs, had they used such diligence, have sold said number of bales at the market price on the market in Houston prior to defendant's thereafter...