Law Reporting Co. v. Texas Grain & Elevator Co.

• Decision Date: 14 May 1914
• Docket Number: (No. 1335.)
• Citation: 168 S.W. 1001
• Parties: LAW REPORTING CO. v. TEXAS GRAIN & ELEVATOR CO.
• Court: Texas Court of Appeals

168 S.W. 1001

LAW REPORTING CO. v. TEXAS GRAIN & ELEVATOR CO.

(No. 1335.)

Court of Civil Appeals of Texas. Texarkana.

May 14, 1914.

Error to District Court, Tarrant County; W. T. Simmons, Judge.

Action by the Law Reporting Company against the Texas Grain & Elevator Company. There was a judgment for defendant, and plaintiff brings error. Reversed and rendered for plaintiff.

Spoonts, Thompson & Barwise, of Ft. Worth, for plaintiff in error. Goree & Turner, of Ft. Worth, for defendant in error.

HODGES, J.

The plaintiff in error is a private corporation with its domicile and place of business in the city of New York. The defendant in error is a partnership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers, residing in Tarrant county, Tex. This suit was brought by the plaintiff in error in 1907, for the purpose of recovering the sum of $649.20 alleged to be due from the defendant in error as the value of certain testimony taken and reported for them during the hearings before the Interstate Commerce Commission. The following correspondence explains the service rendered and is relied upon as constituting the contract sued on:

"Re Grain Investigation. Interstate Commerce Commission — Dear Sir: We have completely transcribed and are prepared to furnish at once the testimony taken recently in the grain investigation by the Interstate Commerce Commission at Chicago, Kansas City, Omaha and Des Moines, at the rate of ten cents per folio. This testimony is of the utmost importance to grain, elevator and railroad companies. The hearings will be resumed at Milwaukee on the 20th, Minneapolis the 21st, and Duluth the 23rd inst. May we enter your order? Awaiting your commands, we are

                   "Respectfully yours
                                  Law Reporting Company."
                

That letter was written November 15, 1906, and addressed to the Texas Grain & Elevator Company, to which that company replied on November 20, 1906, as follows:

"Law Reporting Company, 67 Wall Street, New York: Please send me one copy of the testimony taken in the Interstate Commerce Commission Grain Investigation, at ten cents per folio.

                "[Signed] Texas Grain & Elevator Company
                                      "Edwin B. Doggett."
                

At the time this correspondence took place an investigation such as that referred to in the first letter above mentioned was being conducted by the Interstate Commerce Commission. The defendants in error were engaged in the grain business in the city of Ft. Worth. Copies of the testimony were sent by mail to the defendants in error during the next 30 days, and were accepted and retained by them. The testimony furnished was in form of loose sheets bound together much in the same manner as the transcript and statement of facts are bound in cases appealed to the higher courts. When the last of these sheets were delivered on December 23, 1906, a bill was rendered to the defendants in error showing that 6,492 folios had been furnished, which at 10 cents per folio amounted in the aggregate to $649.20. The testimony showed that E. B. Doggett was the member of defendants' firm who conducted the correspondence and was the only one who knew the terms of the contract. Doggett testified that he understood the term "folio" to mean a pamphlet, or small book, consisting of a number of pages bound together, and he supposed the testimony would cost only a few dollars. Upon receipt of this bill he immediately wrote the plaintiff in error that there must be some mistake; that the Texas Grain & Elevator Company did not want the books for copies of the testimony, and had not ordered any such books or contracted to pay any such price for this testimony; that it was not worth more than a mere newspaper report. The defendants in error then returned the transcripts by express. The plaintiff in error refused to accept them, and sent them back to the defendants in error. The latter, however, declined to pay, and this suit followed. On March 28, 1907, the plaintiff in error filed its original petition against the Texas Grain & Elevator Company, alleging that it was a private corporation, and then proceeded to set out its cause of action. On March 3, 1908, the Texas Grain & Elevator Company filed its original answer consisting of a general demurrer and a general denial, and alleging that the Texas Grain & Elevator Company was a copartnership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers. On November 8, 1912, the plaintiff in error filed its first amended original petition, still complaining of the Texas Grain & Elevator Company as a corporation. On November 11, 1912, the Texas Grain & Elevator Company filed its first amended original answer, which consisted, among other things, of a plea in abatement praying for the dismissal of the suit on the ground that the Texas Grain & Elevator Company was not a corporation, but a copartnership composed of the members set out in its original answer. On November 18, 1912, the plaintiff in error filed another amended original petition, in the first portion of which it alleged that the Texas Grain & Elevator Company was a corporation, but further alleged in the alternative that if it was not a corporation it was a copartnership composed of E. B. Doggett, J. L. Moore, and E. N. Rogers. The court overruled the general demurrer and the special exceptions raising the defense of limitation.

The case was submitted to the jury on special issues, and the following is the substance of the findings returned by the jury: (1) The jury did not believe that Doggett understood fully and clearly the meaning of the word "folio" as used in connection with the measurement of testimony at the time he wrote the letter ordering the transcripts. (2) That the word "folio" as used by the plaintiff in its letter proposing to furnish the testimony meant 100 words. (3) That the word "folio" as understood by people engaged in taking testimony means 100 words. (4) That the reasonable value of the services performed by the plaintiff in furnishing the testimony to the defendants, which was the subject-matter of the contract, was 10 cents per 100 words. (5) That the plaintiff did furnish the testimony as per contract. There were two questions propounded which the jury failed to answer, and which by agreement of the parties were answered by the court. Those questions and the answers are as follows:

"(1) Did the minds of the parties meet, and was there any agreement between them for the sale and purchase of the testimony in...