Houston Cotton Oil Co. v. Trammell

Decision Date21 January 1903
Citation72 S.W. 244
PartiesHOUSTON COTTON OIL CO. v. TRAMMELL.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Court of Appeals

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by D. M. Trammell against the Houston Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boynton & Boynton, for appellant. Henry & Stribling and Spell & Phillips, for appellee.

FISHER, C. J.

D. M. Trammell brought this suit against the Houston Cotton Oil Company, on January 14, 1901. In the amended petition, on which trial was had, he alleges: That he was in August, 1900, engaged in the cattle-feeding business, and at that time entered into a contract with the appellant, in which it was agreed that the appellant should furnish and deliver to him at West, Tex., sound cotton seed meal, for the purpose of feeding plaintiff's cattle at that place. The cotton seed meal and hulls, according to the terms of the written contract, were to be delivered to the plaintiff in October, 1900, and thereafter. In October he put in the pens at West, Tex., about 420 head of cattle, for the purpose of feeding and fattening them on the cotton seed meal and hulls that were to be furnished by the appellant under the contract. That from the 26th of October, 1900, until about the 6th day of December of the same year, the defendant furnished him sound cotton seed meal and hulls, upon which the cattle fattened and flourished, but that on about the last-named date the defendant knowingly and willfully began to furnish him unsound and inferior cotton seed meal, and that the same was fed by the plaintiff to his cattle under the belief that it was sound and wholesome. That its defective condition was not discovered, and could not have been discovered, before feeding the same to the cattle. That the effect of the inferior and unsound meal upon his cattle was extremely hurtful and injurious, and greatly damaged them, in that it caused them to become sick; causing their bowels to run off, and said cattle to scour badly; causing them to pass from their bowels large quantities of blood and mucous, and producing upon said cattle permanent injury and damage. That on or about the 13th of December, 1900, the plaintiff discovered the injured and damaged condition of his cattle, and that it was caused and produced by the unsound meal, and that thereupon he immediately ceased to use the same, and notified the agents of the defendant, who thereupon promised the plaintiff that he should thereafter be furnished sound and wholesome meal, as provided for in the contract. That he relied upon these promises and representations, and resumed the feeding of meal furnished by the defendant, believing the same to be sound, but which in fact was unsound, and was not of the quality promised and agreed to be furnished. That the unsound condition of the meal was known to the defendant, its agents and employés. The damages to the 420 head of cattle by reason of being fed with the unsound meal is alleged to be the market value of $10 per head. By supplemental petition the plaintiff alleged that he was not guilty of want of care or negligence in preventing the injury to his cattle; that he was not aware of the unsound condition of the meal, but believed the same was wholesome, and relied upon the promises of the appellant to furnish sound meal. The defendant, in its answer, admitted the execution of the contract in writing, substantially as set out and described in the plaintiff's petition, and denied that the cotton seed meal and hulls caused the sick and damaged condition of the plaintiff's cattle, and alleged other grounds and reasons why the plaintiff's cattle became sick, and that if the meal was unsound the plaintiff should have rejected the same, in that he could have procured and purchased suitable and sound meal, so as to avoid the injury to his cattle, and if the cattle had become sick as described, he could have put them in a pasture and fed them hay, or reduced the feed of meal, none of which was done, and all of which was usual in such cases, and alleged generally that it complied with the contract in furnishing the meal.

After stating the issues made by the pleadings, the charge of the court is as follows:

"Under the contract between plaintiff and defendant, by which defendant agreed to furnish to the plaintiff feed for his cattle, it was the duty of the defendant to furnish plaintiff with sound cotton seed meal (that is, cotton seed meal suitable and proper for feeding and fattening cattle in pens for market); and it was the duty of the plaintiff, in receiving said meal, to exercise ordinary care (that is, such care as a person of ordinary prudence would have used under the same circumstances) to have ascertained, before he fed such meal as was delivered to his cattle, if the same was sound and suitable for the purpose for which it was delivered.

"Now, if you believe from the evidence that any of the meal furnished by the defendant to the plaintiff under said contract was not sound and suitable for such feeding purposes as aforesaid, and that the same was fed to the plaintiff's cattle, and caused them to become sick, as alleged by the plaintiff, and that injury resulted to the plaintiff therefrom, and you further believe from the evidence that plaintiff and his said agent receiving and feeding said meal exercised ordinary care, and did not discover before feeding it that such meal was unsound and unsuitable for such feeding purposes, if you find it was, then, if you so find, you will find for the plaintiff. The burden of proof rests upon the plaintiff to establish the facts relied upon by him for a recovery, as set forth in the foregoing paragraph, and by a preponderance of the evidence.

"If you find that plaintiff's cattle were sick, as alleged by him, but that such sickness was not caused by unsound meal, as hereinbefore defined, furnished him by defendant, or if you believe from the evidence that plaintiff or his agents receiving said meal discovered its unsoundness, if you find it was unsound, or by the exercise of ordinary care would have discovered such unsoundness, before feeding the same to plaintiff's cattle, then, in either event, you will find for the defendant.

"If you find from the evidence that plaintiff's cattle were made sick by unsound meal furnished him by the defendant, then it was the duty of plaintiff, upon the discovery of such sickness, to use ordinary care to cure them; and if you find from the evidence that plaintiff or his representative in charge of said cattle, after said cattle became sick, failed to exercise such care to cure them, and you further find that, if such care had been exercised, the damage, if any, to said cattle, would have been reduced, then you are instructed that plaintiff cannot recover of defendant such damage as was sustained by reason of lack of such care, if any; and the burden of proof rests upon the defendant to show by a preponderance of the evidence that plaintiff did not exercise such care as mentioned in this paragraph.

"If you find for the plaintiff, you will assess his damage from the evidence by determining what was the fair market value of his cattle which were made sick, if any, immediately before they became sick, and such market value thereafter. Then, if you find their market value after their sickness, if any, to be less than it was before such sickness, the difference between the two you will find as plaintiff's damage, if any, unless you should find that after plaintiff's cattle became sick he failed to exercise ordinary care to cure them, in which event, if you so find, you will assess his damage at such sum as he would have sustained, if any, had he exercised such care to effect their cure.

"You are the exclusive judges of the weight of the evidence and the credibility of the witnesses, and, as you find, so say by your verdict."

Verdict and judgment resulted in plaintiff's favor in the sum of $2,100. The evidence introduced by the plaintiff, upon which the verdict is based, authorizes us to find the following facts: In August, 1900, the plaintiff and appellant executed the written contract set out in plaintiff's petition, whereby the appellant agreed that it would, in October of the same year, and thereafter, furnish and deliver to the plaintiff, at West, Tex., sound cotton seed meal. The written contract is silent as to the purpose of the plaintiff in purchasing the meal, and as to the use he intended it for; but the appellant, through its agents and officers, knew that the plaintiff, in the purchase of the meal, intended to use it for the purpose of fattening beef cattle for market. On October 17, 1900, at West, Tex., the plaintiff put in pens, for the purpose of feeding, 423 head of cattle, which he intended to feed and fatten for market with the cotton seed meal and hulls. In pursuance of the contract the plaintiff then demanded cotton seed meal of appellant, and, after some delay, sound meal and hulls were delivered to the plaintiff at West, Tex., by the appellant,...

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