Hollis Cotton Oil, Light & Ice Co. v. Marrs & Lake

• Decision Date: 09 November 1918
• Docket Number: (No. 8913.)
• Citation: 207 S.W. 367
• Parties: HOLLIS COTTON OIL, LIGHT & ICE CO. v. MARRS & LAKE.
• Court: Texas Court of Appeals

207 S.W. 367

HOLLIS COTTON OIL, LIGHT & ICE CO. v. MARRS & LAKE.

(No. 8913.)

Court of Civil Appeals of Texas. Ft. Worth.

November 9, 1918.

Rehearing Denied December 14, 1918.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by the Hollis Cotton Oil, Light & Ice Company against Marrs & Lake. Judgment for defendant on a cross-action, and plaintiff appeals. Affirmed.

Bryan, Stone & Wade, of Ft. Worth, and Bond, Melton & Melton, of Chickasha, for appellant.

James C. Wilson, Slay, Simon & Smith, and B. K. Goree, all of Ft. Worth, for appellee.

BUCK, J.

This is an appeal from an adverse judgment against the appellant as plaintiff in a suit in which it sought to recover for certain feed furnished and freight charges paid on a shipment of cattle from Ft. Worth, Tex., to Hollis, Okl., and a judgment in favor of defendants, Marrs & Lake, on their cross-action for damages for alleged breach of contract.

Plaintiff alleged that on October 12, 1915, defendants delivered to the railroad company at Ft. Worth ten carloads of bulls for shipment to appellant, Hollis, representing to the railroad company that the freight charges would be paid at the destination. It was further alleged that plaintiff had not purchased the bulls from defendants, and knew nothing about such shipment until after it was made; that when the cattle arrived at Hollis, the manager of plaintiff was out of the city, and an employé, without authority in the premises, but supposing from the fact of said shipment that plaintiff had purchased the cattle, paid the freight thereon and unloaded the cattle; that on the next day the manager of the plaintiff returned from Kansas City, and being advised of the situation, immediately notified defendants that the cattle were held subject to their order; that on October 20th, defendants went to Hollis and took possession of and moved the cattle; but in the meantime plaintiff had been compelled to and had fed to the cattle cotton seed meal and hulls of the market value of $212.70, for the recovery of which, together with freight, also paid, in the sum of $320, this suit is filed.

Defendants answered: That on and prior to the date of shipment of said cattle they were engaged at Ft. Worth in the general live stock commission business, purchasing cattle for themselves and also for their customers; with reference to the undisputed purchase by the plaintiff of the cattle involved in this suit, defendants alleged, "that for some time prior to November 11, 1915," and at the special instance and request of the Hollis Cotton Oil, Light & Ice Co., and of its agents and officers, particularly the said J. A. Stine and E. C. Burton, the defendants had been purchasing for the account of said plaintiff company and shipping to it live stock, charging said plaintiff company for their services a commission on said transactions and billing out the stock so purchased to said concern at Hollis, Okl., and against which shipments they would draw drafts for the purchase price of said cattle, said concern paying the same and the freight and other charges on said purchases. That in the latter part of September, 1915, said plaintiff and its officers and agents directed the defendants to advise or give them notice when some 200 to 400 bulls and some medium grade steers could be purchased at Ft. Worth. That on receipt of said request and directions, the defendants advised plaintiff and its officers and agents of their ability to purchase several carloads of such cattle, and that, upon being so advised of the character of the cattle that could be purchased, and of the price thereof, plaintiff and its officers and agents directed the defendants to purchase said cattle, which was done and for the account of said plaintiff; that on the purchase of said cattle upon the terms and conditions authorized, plaintiff and its agents directed the defendants to ship out and bill said cattle to plaintiff at Hollis, Okl., with freight and other charges to follow and to be paid by plaintiff, and to draw draft against plaintiff for the purchase price of said cattle.

It was further alleged that the shipment was made according to order, and 10 carloads of cattle or bulls, being 281 head, were shipped to the plaintiff at Hollis, and that a draft in the sum of $12,382.17 was drawn on plaintiff to cover the cost of said cattle, including $10 per car commission to the defendants, $37.70 for feed given said cattle by defendants, and $13.50 for clipping the horns of said cattle. It was further alleged that plaintiff thereafter failed and refused to keep said cattle or to pay for same. It was further alleged that thereupon defendants were forced and required to take possession of said cattle, and thereafter to sell the same at a depreciated price. Various items of damages were pleaded, for cattle that died in the shipment, during the time they were in plaintiff's feeding pens at Hollis, and while removing them to pasture in Texas, railroad fare and expenses of employés in handling said cattle, pasturage, etc., alleged to be in the amount of $4,500. Judgment was sought against plaintiff and J. H. Stine and E. C. Burton in said sum. In its supplemental petition, while denying that any contract with the defendants relative to the purchase of the cattle by plaintiff had been made, plaintiff further pleaded that if it had made, or attempted to make, the contract or agreement alleged in defendants' cross-petition, such contract was ultra vires and not binding upon plaintiff and wholly void.

Defendants in supplemental answer denied that the contract alleged was ultra vires of plaintiff's charter powers, but alleged that such contract and acts were customary, usual, and incidental and necessary to the exercise by plaintiff of its charter rights.

The cause was submitted to a jury on special issues, and the jury found in answer to the same:

(1) That J. H. Stine authorized and directed the defendants to purchase for the account of plaintiff and to ship to it the cattle in question; (2) that J. H. Stine agreed to pay defendants the amount which defendants had paid for the cattle with the additional charge of $10 per car in the way of commissions; (3) that J. H. Stine was authorized by plaintiff or directed by it to purchase for its account said cattle; (4) that defendants believed that said Stine was so authorized by plaintiff to purchase the cattle in controversy from defendants and for plaintiff; (5) that the transactions theretofore had between plaintiff and the defendants, and negotiations between them, have been of such a nature and character as to cause a man of ordinary care and prudence to believe that said Stine was authorized by plaintiff to purchase the cattle for it.

Each party filed a motion for judgment; the defendants' motion being granted. Judgment was entered, denying plaintiff's right to recover, and giving judgment in favor of defendants against the plaintiff in the sum of $2,043.35, with interest from June 29, 1917. From this judgment the plaintiff has appealed.

The sufficiency of the evidence to establish the contract alleged by defendants between them and plaintiff is challenged by appellant in several assignments. To determine whether or not the contention thus made is sustainable, the strongest probative effect must be given to the evidence tending to establish the existence of the contract.

E. C. Burton testified that he lived at Chickasha, Okl., and in October, 1915, was president and general manager of plaintiff company, while Robert Freeman was the local manager; that on or before October 9th he left Chickasha for Kansas City, and on his return the draft drawn to cover the purchase price of these cattle and the expenses was presented to him; that he had not purchased or authorized the purchase of the cattle, and had no information of any kind with reference thereto; that immediately he called up Mr. Freeman, the local manager at Hollis, to know if the cattle had arrived, and that the latter told him that they had been unloaded and the freight paid; that he instructed Mr. Freeman to feed the cattle, but not to deliver them to any one until the freight and feed bill had been paid; that he then talked over the telephone with Mr. Lake at Ft. Worth; that the latter admitted to him that while he had talked with Stine about shipping the cattle, yet Stine had not instructed him to ship them, but that he, Lake, felt sure that plaintiff was in the market for that character of cattle, and thereupon proceeded to ship them. Some discussion between Burton and Lake was had looking to an acceptance of the cattle by the former upon a reduction in the price, but no agreement was reached.

The evidence shows that the feeding pens at Hollis were built by the plaintiff company in 1912-1913 to accommodate cattle which the company was feeding; that on several occasions cattle were purchased by the plaintiff, and were fed in these pens and with the hulls, cotton seed meal, etc., from the mill and fattened for the market; that in some instances the cattle were purchased through Stine for the plaintiff company, and in other instances the cattle were owned by Burton and Stine, and some by Stine alone; also that the pens were rented to other feeders, who used the plaintiff company's products for fattening their cattle.

The evidence further shows that at the time these cattle were shipped, or shortly prior thereto, plaintiff company had on hand a large quantity of meal and hulls from the 1914 season; that the market for such products at this time was very low; that the plaintiff needed the storage room in its mill and bins for the 1915 crop; that it had not been able to sell the stock on hand at a desirable price; that on the trip of Burton, plaintiff's manager, to Kansas City some of the stock on hand had been sold, just how much is not disclosed. On September 27, 1915, said Burton, acting for plaintiff company, wrote to Lake as follows:

"...