Hedgepeth v. Hamilton Warehouse Co.

• Decision Date: 27 April 1910
• Citation: 128 S.W. 709
• Parties: HEDGEPETH v. HAMILTON WAREHOUSE CO.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 709

128 S.W. 709

HEDGEPETH v. HAMILTON WAREHOUSE CO.^†

Court of Civil Appeals of Texas.

April 27, 1910.

Rehearing Denied May 25, 1910.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Action by D. P. Hedgepeth against the Hamilton Warehouse Company. From a judgment sustaining a general demurrer to the petition, plaintiff appeals. Affirmed.

P. M. Rice, A. R. Eidson, and J. L. Lewis, for appellant. Langford & Chesley, for appellee.

RICE, J.

This suit was brought by appellant against appellee to recover the penalty provided for in article 4314, c. 90, Rev. St., and also for the recovery of fees of office as public weigher, and likewise for a writ of injunction restraining appellee from weighing cotton in the town of Hamilton, in violation of plaintiff's rights as such public weigher. The case was tried before the court without a jury, and a general demurrer was sustained to plaintiff's petition. Therefore the only question arising upon this appeal is as to the correctness of the ruling of the court in sustaining said demurrer.

It was alleged, among other things, in plaintiff's petition that he was the duly elected, qualified, and acting public weigher of justice precinct No. 1 of Hamilton county, in which the town of Hamilton was situated, having been elected to said office at the general elections held in November, 1906, and 1908, and, after qualifying by giving the required bond and taking the oath prescribed by law, he entered upon the discharge of his duties, and immediately thereafter equipped himself with all the books, blanks, scales, etc., required in said business, and secured a place convenient and easy of access to the general public who brought cotton to said town, it being the only place in said precinct where cotton was brought for sale or shipment in which to weigh and store cotton, and has continuously since his election and qualification, as aforesaid, maintained all the aforesaid things, and was at all times able, ready, and willing to weigh all cotton brought within said precinct and to said town of Hamilton with accuracy and dispatch, and to properly handle and care for the same; that, by reason of his election, qualification, and equipment aforesaid, it became his duty to weigh the cotton hereinafter mentioned and his right to receive any penalties that might accrue by reason of the violation of his rights in the premises. But, notwithstanding plaintiff's right so to do, the defendant company, which was at all the times hereinafter alleged engaged in the business of constructing and maintaining public warehouses for the storage of products and commodities, and the purchase and sale of products and commodities, together with the loaning of money on such products and commodities, it at all of said times acting under and by virtue of a charter granted by the state of Texas authorizing it to engage in the aforesaid business, but none other, did, without the consent of plaintiff and in violation of his rights, employ certain named persons, neither of whom was a public or deputy public weigher for said precinct, to weigh the cotton hereinafter mentioned; and, in this connection, plaintiff says that all of said cotton weighed by the aforesaid parties was weighed at the said town of Hamilton in said precinct for the purpose of ascertaining its weight for sale, or for the loaning of money on it, or for both of said purposes, none of which cotton belonged to defendant, but belonged to various persons, principally farmers, etc. It was further alleged that said defendant by and through its agents and employés during the season of 1907 and 1908 weighed about 1,600 bales of cotton, and during the season of 1908 and 1909 about 8,000 bales of cotton, all of which plaintiff was prepared to weigh and care for, and which he would have weighed and cared for but...