Hooper v. Bell, 11812.

• Decision Date: 07 April 1948
• Docket Number: No. 11812.,11812.
• Citation: 210 S.W.2d 870
• Parties: HOOPER et al. v. BELL.
• Court: Texas Court of Appeals

210 S.W.2d 870

HOOPER et al. v. BELL.

No. 11812.

Court of Civil Appeals of Texas. San Antonio.

April 7, 1948.

Rehearing Denied May 5, 1948.

Appeal from District Court, Ninety-Second District, Hidalgo County; W. R. Blalock, Judge.

Action by Everett Bell against Warren Hooper and others, doing business as the Phar-Tex Fruit Company, and another to recover amount allegedly due under a contract for sale of fruit. Judgment for plaintiff, and defendants appeal.

Affirmed.

Magus F. Smith, Samuel L. Oakleaf and E. A. McDaniel, all of McAllen, for appellants.

L. A. Smith, of Mission, and Tom L. Hartley, of Pharr, for appellee.

SMITH, Chief Justice.

This is a suit brought by Everett Bell, plaintiff, against Warren Hooper, Marko Dizdar and Barney Horvich, doing business as the Phar-Tex Fruit Company. United States Casualty Company of New York, surety upon a bond executed for Phar-Tex Fruit Company, in conformity with the Texas Citrus Growers' Act, Article 118b, Vernon's Ann.Civ.Stats., Article 1700a — 3, Vernon's Ann.Penal Code, was also named as defendant. Trial was to a jury and judgment rendered against the defendants, including the surety company, for the sum of $5,000. An additional recovery of $2,627.21, against the owners of Phar-Tex Fruit Company was also allowed.

All defendants have appealed. Hooper, Dizdar and Horvich will hereinafter be referred to as defendants, as in the trial court. The dates and times mentioned refer to the 1946-47 citrus fruit season in the Lower Rio Grande Valley of Texas. The events pertinent here took place during the period of time from October, 1946, up to and including February, 1947.

On October 18, plaintiff and defendants entered into the following contract:

"Phar-Tex Fruit Company

Growers, Packers, Shippers of Citrus Fruit.

                Phone 118                    P. O. Box 534
                              Pharr, Texas
                                        Date 10/18/1946
                Bought of Everett Bell,    Tel. 6018F14
                

Kind of Produce, Grape Fruit & Oranges as listed below

Clear trees of all fruit by Feb. 15/47.

Probable Harvesting Date, Weather Permitting —

Ring Pick 80 & up now and again Dec. provided justifiable.

Buyer not liable for damages caused by any Act of God prior to harvesting. Owner or Seller hereby warrants that the commodities covered by this contract are not mortgaged and seller hereby states that he has not been induced or persuaded to sell such commodities at the price herein named by any representation as to the market by buyer but has made his own independent investigation of same, and further that he has not been induced or persuaded by buyer to breach any contract heretofore executed by seller covering the same commodities. This contract, including the probable harvesting date, is subject to all regulations of State and Federal Governments and laws.

                Remarks:   Formage basis
                           Marsh Pink     —  $55.00
                           Foster Pinks   —  $55.00
                           Early Oranges  —  $55.00
                           Marsh White    —  $25.00
                

Weight P. S. Mission

All terms of this agreement have herein been reduced to writing.

                              /S/ Everett Bell — Grower
                                      Seller,    Owner
                                                 Agent
                                  Fred W. Volz, Buyer."
                

Shortly after the execution of the contract, defendants harvested size eighty (to a standard fruit box) and larger from plaintiff's orchard.

About November 29th, plaintiff and defendants had conversations with reference to further picking of fruit. In connection therewith the jury found that on said date "Plaintiff Bell and Defendants Hooper and Dizdar entered into an agreement that Bell's entire grove could be picked for size 96s and larger grapefruit."

On November 30th, defendants started picking fruit from the Bell orchard, but plaintiff discovered that instead of taking 96s and larger, defendants were picking 80s and larger. Bell called the defendant Horvich and "asked what was the reason for making a deal with him to pick 96s, and without consulting (him) coming out and picking 80s." According to Bell, Horvich then asserted the right to pick any size fruit any time he wanted to.

Bell testified that he refused to allow defendants to pick 80s unless they also took the smaller fruit; that Horvich said that he didn't want this smaller fruit and "he (Horvich) told me to send the trucks home."

Shortly thereafter, Bell received a letter which stated: "Due to your refusal to permit the Phar-Tex Fruit Company of Pharr, Texas, to pick fruit on your citrus grove, you have breached your Contract of October 18th, 1946, with this Company. This is to inform you that the Phar-Tex Fruit Company is no longer bound by the terms of this Contract. Please return your copy of such Contract to this Company immediately."

Defendants contend that under the contract they were entitled to pick the fruit at any time so long as they cleaned the trees by February 15th, and that plaintiff's action of November 30, 1946, amounted to a repudiation of the contract which authorized defendants to treat the same as no longer effective.

In line with this contention it is asserted that the oral agreement of November 29th (as found by the jury) was of no effect because it was not supported by a consideration, and evidence relating thereto was admitted in violation of the parol evidence rule.

The position of the parties and the trial court's ruling is made clear by the following excerpt from the Statement of Facts:

Mr. Hartley (plaintiff's attorney):

"If the Court please, I expect to elicit from Mr. Volz, the witness, substantially the following line of testimony to the effect that on or about the 28th day of November that he, the witness, Fred Volz, acting as agent for the Defendants, approached Bell and persuaded him to allow the Defendants to harvest sizes 96s and larger from his citrus grove, with the assurance that the Defendants would live up to their contract which they had heretofore entered into on October 18, 1946, and assured him that they would clean all the trees of all fruit by February 15th. And that on the 29th day of November the Defendants, Marko Dizdar and Warren Hooper, and the witness came to the orchard of the Plaintiff and in the presence of the witness the defendants assured Plaintiff that they would so live up to their contract and clean all trees by February 15th and explained to Plaintiff that there was at that time a demand for small fruit and it would be an accommodation to them if he would allow them to pick 96s and larger at that time.

"Mr. McDaniel: If the Court please, we object to such testimony insofar as the same is intended to, or has the purpose of varying the terms of the original contract; and also object to the same insofar as it may be contended or have for its purpose the making of a new contract limiting the rights of the Plaintiff under the original contract, for the reason that it is not shown to have any consideration and would merely be an attempt to show a new contract based upon no valuable consideration or else an effort to change the terms of a written contract, and also on the further grounds that it is not shown by the testimony that Mr. Volz had any authority, either actual or apparent, to make any harvesting contract such as shown or to change the terms of the original contract theretofore made. This objection does not go to the proposition of objecting to showing that 96s were picked or that the parties agreed that they would pick 96s at any particular date. It goes to the proposition of asking such — of using such changes to show either a new contract or the variation of the terms of the old contract.

"The Court: The objection of the Defendants will be overruled."

It seems to us that the all important question which arose is this: Did Bell by refusing to allow defendants to pick 80s or better on November 30th, repudiate the contract? On this point the supplementary agreement or negotiations of November 29th are of importance. We may assume for the present purpose that under the written contract, the defendants were entitled to pick any size fruit at any time they desired. Had there been no subsequent negotiations or agreements, Bell's action in refusing to allow defendants to pick 80s or better would come close to a repudiation of the contract. However, if there had been a subsequent agreement as to 96s, Bell's refusal to allow defendants to pick 80s assumes a different aspect. The refusal is referable to subsequent agreement relating to 96s and not to the original written agreement. And this is true regardless of the technical sufficiency of the supplemental agreement, for the issue here is not one of unauthorized variation from the terms of a contract, but, rather, a question of whether or not a contract has been repudiated.

The contract involved was upon a printed form prepared for and used by defendants in their purchases of grapefruit and oranges during the 1946-47 fruit season. The words, "Ring Pick 80 & up now and again Dec. provided justifiable." (italicized in the contract above set out) were written into the contract immediately after the printed words: "Probable Harvesting Date, Weather Permitting."

The main controversy centers around these words. Defendants contend that "now and again Dec." were plainly stated as probable harvesting dates and the clear import of the agreement was that the fruit could be picked at any time.

Plaintiff makes some contention that having picked the orchard for 80s at the time the contract was made, defendants were not entitled to pick 80s again until December, and the judgment could be supported upon the theory that a peremptory instruction for plai...