Hopkins v. Woldert Grocery Co.

• Decision Date: 08 January 1902
• Citation: 66 S.W. 63
• Parties: HOPKINS v. WOLDERT GROCERY CO.
• Court: Texas Court of Appeals

66 S.W. 63

HOPKINS v. WOLDERT GROCERY CO.

Court of Civil Appeals of Texas.

January 8, 1902.

Appeal from Milam county court; R. B. Pool, Judge.

Action by the Woldert Grocery Company against E. J. M. Hopkins. From a judgment for plaintiff, defendant appeals. Affirmed.

Morrison & Wallace, for appellant. Hefley, McBride & Watson, for appellee.

KEY, J.

This is an action for damages for breach of a written contract for the sale of 30,000 pounds of pecans. The breach of the contract and the damage resulting therefrom were clearly shown by undisputed testimony, and the court directed a verdict for the plaintiff. The contract referred to reads as follows: "Rockdale, Texas, Aug. 24, '99. I have this day sold and agree to deliver to Woldert Gro. Co., f. o. b. cars Rockdale, one car load (30,000 pounds) thirty thousand pounds new crop pecans, (at 4c.) four cents per pound, delivery to be made on or before Nov. 14, 1899. Pecans to be sacked. [Signed] E. J. M. Hopkins." While some other questions are presented, the main contention is that the defendant had the right to show that at the time the contract was made it was understood and agreed that the defendant was to fill it with pecans of the crop of 1899, grown in the territory tributatary to Rockdale, and that the plaintiff represented to the defendant at the time the contract was made that said pecan crop was good, which was untrue, and in fact that the crop in said territory was a total failure. To have permitted the defendant to prove that the pecans referred to were to be grown in the territory tributary to Rockdale, and not elsewhere, would have added a condition to the contract in respect to which there was no ambiguity. If the defendant had tendered to the plaintiff 30,000 pounds of pecans of the crop of 1899 grown in Travis county, the plaintiff could not have declined to receive them, because they were not grown in the vicinity of Rockdale. In fact, the contract is plain and clear. It required the defendant to furnish a stated quantity of pecans, and the plaintiff to pay four cents a pound therefor, and it was wholly immaterial where the defendant procured the pecans.

The defendant's plea of fraud, charging that the plaintiff's agent misrepresented to the defendant the condition of the pecan crop in the territory adjacent and tributary to Rockdale, was insufficient, because it did not aver that, by reason of the failure of the pecan crop in that territory, it would have cost the defendant more to...