L. Craddock & Co. v. Wells-Fargo Co. Express

• Decision Date: 15 January 1910
• Citation: 125 S.W. 59
• Parties: L. CRADDOCK & CO. v. WELLS-FARGO COMPANY EXPRESS.
• Court: Texas Court of Appeals

125 S.W. 59

L. CRADDOCK & CO. v. WELLS-FARGO COMPANY EXPRESS.

Court of Civil Appeals of Texas.

January 15, 1910.

Rehearing Denied February 12, 1910.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by L. Craddock & Co. against Wells-Fargo Company Express. From a judgment for defendant, plaintiff appeals. Affirmed.

Camp & Camp, for appellant. Etheridge & McCormick and Alexander & Hogsett, for appellee.

BOOKHOUT, J.

This suit was instituted August 26, 1907, by L. Craddock & Co. against the Wells-Fargo Company Express to recover the sum of $1,025.93 which plaintiff paid defendant as outgoing and return express charges on a large number of packages of intoxicating liquors delivered to defendant at Dallas, Tex., to be transported and delivered to various consignees throughout the state of Texas, and to collect from each consignee the cost of the goods and transportation, and return said collections to plaintiff, which defendant failed and refused to do, on the ground that same was prohibited by the Act of February 12, 1907, known as "House Bill No. 53" (Acts 1907, c. 4), and commonly known as "An Act Imposing an Occupation Tax on Persons, Firms and Corporations Handling Liquors C. O. D." Upon a hearing by the court upon an agreed statement of facts, judgment was rendered for the defendant, and plaintiff appealed.

The agreed statement of facts shows that defendant promptly carried the liquor shipments to the several points of destination and fully performed all of its duties as a carrier with respect to same up to and including February 12, 1907. On that day an act of the Texas Legislature passed, with the emergency clause, imposing an occupation tax or license on persons, firms, or corporations handling intoxicating liquors C. O. D. The appellee, after said act went into effect, refused to any longer continue the C. O. D. business as applied to the liquor traffic. It delivered all C. O. D. packages after February 12, 1907, on which appellant would release the C. O. D. Appellant did this as to certain packages, but refused to do this as to those in question. Appellant requested appellee to return the shipments, remaining undelivered, to it at Dallas, which was done by appellee, but appellee required of appellant the payment of the return express charges on such shipments (the outgoing charges on same having been paid when the packages were originally delivered to appellee). Appellant paid the return charges under protest. In its answer to plaintiff's action the defendant pleaded that the act above referred to was designed by the Legislature to prohibit the C. O. D. feature as applied to the carriage by express of intoxicating liquors. It also pleaded that as a carrier it could not lawfully refund charges for services performed by it as a carrier.

It is contended by appellant that the court erred in rendering judgment for the defendant and not rendering judgment for the plaintiff upon the agreed statement of facts, because the contracts were legal and valid when made, and if the defendant was prohibited by a subsequent valid law from fully performing same, and the plaintiff not having received any benefits from a partial performance, the defendant is liable to the plaintiff for the amount paid by plaintiff to defendant under said contract. The case of Binz v. National Supply Co., 105 S. W. 543, is cited as supporting this assignment. That case does not support the contention of appellant. In that case the National Supply Company entered into a contract with Jacob Binz, whereby said company agreed to furnish the material and construct for defendant a fuel tank in the basement of the Binz Building under the sidewalk on Texas avenue in the city of Houston. Defendant agreed to pay therefor $1,000. At the time the contract was made an ordinance of the city of Houston permitted the construction of such a tank under the sidewalk of the basement of said building. After the contract was made the supply company entered upon its performance, and within two days thereafter delivered in the basement of said building the system provided for in the contract, and promptly delivered some other material for the construction of said tank and appurtenances. On the 8th day of April, 1902, an ordinance prohibiting the construction of said oil tank under the sidewalk was passed by the city council, and by reason of said ordinance the said company never constructed the oil tank, and the material furnished by the supply company remained in the basement of said building. Said material was never accepted by Binz, and he never received any benefit from the work done, or the material so furnished. The supply company expended $648 on work done and material furnished on the contract. The supply company brought suit to recover this amount. It was held that Binz was not liable on a quantum meruit, because he had not accepted the same or received any benefit therefrom. It was further held that he was discharged from payment...