Harris v. G. M. H. Wagner & Sons

• Citation: 195 S.W. 351
• Decision Date: 09 May 1917
• Docket Number: (No. 5858.)
• Parties: HARRIS v. G. M. H. WAGNER & SONS.
• Court: Court of Appeals of Texas

195 S.W. 351

HARRIS v. G. M. H. WAGNER & SONS.

(No. 5858.)

Court of Civil Appeals of Texas. San Antonio.

May 9, 1917.

Appeal from District Court, Dimmit County; W. B. Hopkins, Judge.

Suit by C. O. Harris against G. M. H. Wagner & Sons. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Matt Cramer, of Asherton, and Ed H. Wicks, of San Antonio, for appellant. Mann & Henry, of Laredo, for appellees.

FLY, C. J.

The petition of appellant shows that he entered into a contract with Wagner & Sons on September 20, 1915, in which it was provided that, in consideration of certain money to be advanced and services rendered by said firm, the latter was appointed the exclusive agents to market and sell the entire crop of onions to be grown by appellant on his land, consisting of 25 acres, which he agreed to cultivate, furnishing therefor the plants, teams, and labor to harvest, grade, pack, and deliver the onions on the cars to appellees; that appellees agreed to market the onions, and, after deducting the advances, loans, crate money, and 11 cents a crate for commissions, to pay appellant the amount for which the onions are sold. There are other details not necessary to mention. The first contract is not the one declared upon, but the suit is based on a second contract, which is one of purchase. The second contract was dated April 11, 1916, over six months after the first contract was made, and provides for the sale of the onions on 15 acres of land. It is provided also that 85 cents a crate shall "be paid when onions are loaded on cars at Asherton, Tex., and after all advances, commissions, etc., have been deducted." It was alleged that appellant had delivered to appellees, under the second contract, 6,574 crates of onions, but that he had been paid only 74 cents a crate, 11 cents a crate having been retained by appellees as commissions for selling the onions to themselves. The suit is for the sum retained as commissions, amounting to $723.14, for an attorney's fee of $250, and for $1,000 deposited with the Asherton Bank, which, under the terms of the second contract, were to "remain there until contract has been fulfilled, or, in case it is proven that it is not fulfilled, to be given to C. O. Harris."

The second contract is separate and distinct from the first, which was a contract for raising, gathering, and marketing the onions on 25 acres of land. The last contract was one of purchase alone of the onions on 15 acres of land. There is no...