Hubbard City Cotton Oil & Gin Co. v. Nichols

• Decision Date: 25 October 1905
• Citation: 89 S.W. 795
• Parties: HUBBARD CITY COTTON OIL & GIN CO. v. NICHOLS.
• Court: Texas Court of Appeals

Page 795

89 S.W. 795

HUBBARD CITY COTTON OIL & GIN CO. v. NICHOLS.

Court of Civil Appeals of Texas.

October 25, 1905.

Appeal from Hill County Court; L. C. Hill, Judge.

Action by J. A. Nichols against the Hubbard City Cotton Oil & Gin Company. Judgment for plaintiff. Defendant appeals. Reversed.

Bounds & Hart and Wear, Morrow & Smithdeal, for appellant. Spell & Phillips, for appellee.

NEILL, J.

This suit was brought by appellee against appellant to recover the sum of $617.56 charged to be due on an alleged verbal contract made between the parties, the terms of which were alleged by the plaintiff in substance as follows: "In consideration of the agreement which was made on the part of the plaintiff to sell and furnish defendant the cotton seed of his gin during the ginning season of said year and to be derived from his ginning business for said season, defendant agreed to receive same and pay plaintiff therefor, upon its receipt, such amount per ton as, allowing the plaintiff $3 per bale for the ginning of the seed cotton, which was to be purchased by plaintiff in the conduct of such ginning business, from which to obtain said seed, and all expenses of hauling, weighing, and loading, would net to plaintiff the amount that he should pay for said seed cotton to be by him so purchased, and that he should or might purchase, in pursuance of such agreement, after crediting the amount that should be received by him in the sale of the several bales of lint cotton produced from said seed cotton, and defendant to pay all freight charges upon the cotton seed so sold and shipped to it in pursuance of such agreement; that is to say, that on all cotton seed so purchased and ginned by plaintiff during said season, from the conduct of his ginning business, defendant agreed to receive the seed therefrom and pay plaintiff therefor such amount per ton as, allowing for the price that might be obtained by plaintiff in the sale of the lint cotton produced from such seed cotton, and all expenses of weighing, hauling, and loading, would make the plaintiff whole or reimburse him for the amounts paid out by him in the purchase of said seed cotton, and would net him the sum of $3 per bale for the ginning of such seed cotton." The defendant answered by general denial, and specially denying the making of the contract; and further, that before the time of the making of the alleged contract, the appellee was obligated to deliver all of his cotton seed at Hubbard City at the market price, and that the seed received by the appellant was received on said original obligation, and that the appellee had drawn money by way of advancements on his contract, amounting to $106.45 more than the price of the seed cotton shipped appellant. The evidence showed that on February 13, 1902, J. B. McDaniel, the banker at Hubbard City, and also president of the appellant, had loaned the appellee some money, and taken a mortgage to secure the payment of the money, in which mortgage the appellee had obligated himself to deliver all of his cotton seed for the years 1902-03 to the appellant at the market price. The trial of the case resulted in a verdict and judgment in favor of plaintiff for the amount sued for.

The evidence does not show an oral contract in the words alleged in plaintiff's petition; and if such a contract was entered into between the parties, its terms must be deduced from the conversation which took place between J. B. McDaniel, the president of defendant corporation, and plaintiff at the time the latter claims it was entered into. The evidence as to what was said between the parties on this occasion is, even when taken in connection with the subsequent acts and dealings of the parties with each other, not such as to render it free from doubt as to whether such a contract as is declared upon was ever contemplated or entered into by the parties. But if the testimony of McDaniel as to what was said on the occasion is correct, it is clear that it was never contemplated or intended by him, that what was said should constitute any contract or agreement at all; but that the conversation only related to and had reference to their dealings under a then-existing written contract, which he had no intention of abrogating or thought of being taken as waived or abrogated by the plaintiff by anything that was said upon the occasion. In its charge the court, after stating the issues made by the pleadings, instructed the jury that if it believed from the evidence the plaintiff and the defendant acting through its president, J. B. McDaniel, entered into the contract declared upon, and that by reason of...