Heidenheimer v. Cleveland

• Decision Date: 20 November 1895
• Citation: 32 S.W. 826
• Parties: HEIDENHEIMER v. CLEVELAND et al.
• Court: Texas Court of Appeals

32 S.W. 826

HEIDENHEIMER v. CLEVELAND et al.

Court of Civil Appeals of Texas.

November 20, 1895.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by I. Heidenheimer against Cleveland & Cameron. There was a judgment for defendants, and plaintiff appeals. Reversed.

McLemore & McLemore, Jones, Kendall & Sleeper, and Robt. G. Street, for appellant. John L. Dyer, for appellees.

KEY, J.

This is the second appeal in this case. Heidenheimer v. Cleveland, 17 S. W. 524. The basis of the suit is a written contract, which reads as follows: "State of Texas, County of McLennan. Know all men by these presents that I, Isaac Heidenheimer, of Galveston, Galveston county, Tex., for and in consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, have this day sold to Messrs. Cleveland & Cameron, of Waco, McLennan county, Texas, (200,000 lbs.) two hundred thousand pounds of Fowler Bros.' make and packing of short, clear, smoked bacon sides, packed in their regular style of packing; same to be sound, sweet, merchantable bacon of the kind named; Cleveland & Cameron to pay for same on receipt of bill of lading and invoice; the price to be ten dollars and eighty-five cents per hundred pounds (or 10 85/100 per pound); said meat to be delivered to Cleveland & Cameron's order at any time during the month of August, 1883, they paying the freight on same from Kansas City, Missouri. This contract is made on a basis of ten and 10/100 dollars per hundred pounds, or 10 1/10 per pound, which means that, in the event the price of the kind of bacon herein named exceeds the sum of 10 1/10. then in that event Isaac Heidenheimer pays Cleveland & Cameron the sum of such excess, based on the quantity of (200,000) two hundred thousand pounds, and said Cleveland & Cameron are authorized to make their sight draft on said Heidenheimer for such excess; and, should the price shrink or decline below the basis rate of 10 1/10, then under such circumstances Isaac Heidenheimer can draw on said Cleveland & Cameron for such decline below the price of 10 1/10, and on the quantity as herein named. Waco, February 1, 1883. Isaac Heidenheimer. Cleveland & Cameron. Witness: J. Harris, C. H. Jones." The plaintiff alleges in his petition that he complied with the terms of the contract; that the defendants refused to receive and pay for the bacon when tendered; that after such refusal he sold the bacon for the best price obtainable, and after deducting freight and other necessary charges he gave defendants credit for the residue, leaving a balance of $8,356 due on the contract price, for which amount and interest he brought this suit. The defendants pleaded the general issue; averred that the contract sued on was a gambling contract, and void; that they had ordered the bacon shipped not later than the 21st day of August, 1883, and had notified the plaintiff that it would not be received if shipped after that date. The plaintiff, in reply to defendants' answer, alleged that the bacon was placed on board the cars at Kansas City on the 21st day of August, 1883, and would have been shipped on that day but for certain fraudulent acts of the defendants, and that it was shipped on the next succeeding day. After hearing all the evidence ruled to be admissible, the district court instructed the jury to return a verdict for the defendants, which was done, and from a judgment rendered thereon the plaintiff has appealed.

On the former appeal it was held by the supreme court that it did not appear from the face of the contract that the purpose was to deal in "futures," without any actual delivery of the bacon being contemplated by the parties; that some of its terms were ambiguous; and that its meaning in that respect was a question to be decided in the light of the circumstances under which it was made, and the subsequent conduct of the parties in reference thereto. That decision is now part of the law of the case. In his pleadings appellant rested his case on his right to recover the contract price of the bacon, less the net proceeds of its resale, and we therefore hold that no error was committed in not allowing him to prove its market value in Kansas City on the 21st day of August, 1883. His action was not for damages for a repudiation or breach of the contract, but to recover the purchase money (less admitted credits) of the bacon, and he did not allege in his petition the value of the bacon in Kansas City on the 21st day of August, 1883. There was testimony tending to show that after the making of the contract the parties to it interpreted it as contemplating and requiring actual delivery of the bacon, and it was shown by appellant that on the 18th day of August, 1883, appellees sent him the following telegraphic message: "Waco, Texas, August 18, 1883. To L. Heidenheimer, Galveston, Texas: ...