Kasch v. Williams

• Decision Date: 02 May 1923
• Docket Number: (No. 6944.)
• Citation: 251 S.W. 816
• Parties: KASCH et al. v. WILLIAMS et al.
• Court: Texas Court of Appeals

251 S.W. 816

KASCH et al. v. WILLIAMS et al.

(No. 6944.)

Court of Civil Appeals of Texas. San Antonio.

May 2, 1923.

Rehearing Denied May 23, 1923.

Appeal from District Court, Johnson County; Irwin T. Ward, Judge.

Action by T. L. Williams and others against Ed. Kasch and others. From an interlocutory order overruling a plea of privilege, defendants appeal. Reversed and rendered.

R. E. McKie, of San Marcos, for appellants.

Walker & Baker, of Cleburne, for appellees.

FLY, C. J.

This is an appeal from an interlocutory order of the lower court overruling a plea of privilege of appellants to be sued in Hays county, Tex., instead of Johnson county, where they were sued. The suit was to recover damages in the sum of $2,950, on account of fraud practiced upon appellees by the duly authorized agent of appellants in Johnson county, and venue was sustained in that county because of fraud perpetrated therein. Appellants denied the authority of the agent, Stufflebeme, to make any representations as to the quality of the cotton seed sold by him to appellees. Appellees alleged that Stufflebeme, acting as agent, had represented to appellees that 95 per cent. of the cotton seed would germinate, while in truth and in fact only 47 per cent. of them would germinate or did germinate.

In the printed contract for the seed signed by appellees it was provided:

"I understand that the agent taking this order has no authority to make any representation or contract not evidenced by the printed conditions hereon, and has no authority to change or modify said terms, and that this order is taken subject to acceptance by said Ed. Kasch."

It was also provided in the contract:

"Seller is not liable in case of partial or total crop failure from seed sold under this order," and the amounts due for cotton seed were made payable in San Marcos, Tex.

The propositions are, in substance, that the whole contract was embodied in the written instrument and no verbal representations of the agent could bind appellants; that the representation as to germination of the seeds was a promise of something in the future; and that the burden rested on appellees to show an exception to the venue statute. If the agent was not acting within the scope of his agency, real or apparent, his fraudulent acts or representations could not bind appellants and give jurisdiction to the court in Johnson county over the protest of appellants unless such acts were afterwards ratified. In other words, unless the fraud of Stufflebeme was the fraud of appellants originally or by ratification, they have the right to be sued in Hays county.

There was proof to the effect that Stufflebeme was the lawfully authorized agent of appellants in the sale of the cotton seed, and that, although the pamphlet stated his representations should not bind his principals, they in filling the order made the same representations through tags placed in the sacks containing the seed. On those tags were printed:

"Kasch pedigreed cotton seed. Purity of variety, 100 per cent.; foreign matter 3/4 of 1 per cent.; weed seed none; germination 95 per cent.; of U. S. standard; tested by Ed. Kasch, Oct. 1, '20. Grown at San Marcos, Texas. Seeds man, Ed. Kasch, San Marcos, Texas. Weight 128 pounds."

At the time that the tags were placed in the sacks appellants knew nothing of the representations made by the agent. The allegation that the shipment of the seed after the representations were made was a ratification of the verbal representations is not sustained because there is no evidence indicating that the appellants knew of the representations and the shipment was made on the terms of the printed...