Lawrence v. Cananea Consol. Copper Co.
| Decision Date | 19 January 1922 |
| Docket Number | (No. 1265.) |
| Citation | 237 S.W. 959 |
| Parties | LAWRENCE v. CANANEA CONSOL. COPPER CO., S. A., et al. |
| Court | Texas Court of Appeals |
Appeal from El Paso County Court at Law; J. M. Deaver, Judge.
Suit by the Cananea Consolidated Copper Company, S. A., and others against C. H. Lawrence and others. Judgment for plaintiffs against defendant named, and he appeals. Affirmed.
M. W. Stanton, of El Paso, for appellant.
Volney M. Brown, S. J. Isaacks, and E. M. Whitaker, all of El Paso, for appellees.
Appellee Cananea Consolidated Copper Company, S. A., a corporation engaged in mining and mercantile business in Mexico, and operating stores under the name of "Cananea Stores," brought this suit on March 24, 1917, against C. H. Lawrence, D. T. White, and John H. Grant, the last-named two composing the partnership of White-Grant Company to recover $514.32, with interest from November 29, 1913. Appellee sued in the alternative that, if White-Grant Company were not agents of Lawrence, but were acting for themselves, appellee have judgment for said amount against White-Grant Company.
The pleading and evidence are quite voluminous, but the material facts pleaded and shown in the evidence amount, substantially, to the following: In November, 1913, C. H. Lawrence was a wholesale grocer, and doing business as such in El Paso, Tex., and bought and sold sugar. White-Grant Company were merchandise brokers, and acting as such in selling sugar. The following correspondence by letter and telegrams passed between appellant and White-Grant Company:
White-Grant Company replied by telegram as follows:
"Nov. 3d, 1913
"Agent The Cananea Stores: Answering letter
thirty-first can secure two thousand bags
German cubes at three ninety to arrive here in
about ten days. Can divert on New Orleans
Lawrence has only three thousand bags coming
in this lot. Can you use it all. Last in sight
for some time. White-Grant Co."
Again:
Again, telegram (date not given):
Again, a letter:
On the reverse side of the letter were instructions relative to the method of making the invoices.
Plaintiff alleged that, pursuant to the above contract, defendants delivered to it six cars of sugar, for the value of which defendants, through C. H. Lawrence, drew six drafts, aggregating the sum of $10,129.86, on the Cananea Stores, payable to the State National Bank of El Paso, with bills of lading and invoices on said goods attached, and that, in order to receive said goods when same arrived at Cananea, it was compelled to take up and pay said drafts. It was alleged that, instead of paying all the freight on said sugar in excess of the freight on same from El Paso, Tex., to Cananea, as agreed, defendants shipped the same to plaintiff, and failed to pay the advance charges of freight on said goods, chargeable against said goods, which freight was due on said goods prior to the time it arrived in New Orleans, said sugar having originated in shipment from Germany, and that, upon its arrival at Cananea, plaintiff was charged by the railroad with said advance freight, and that same had to be paid by plaintiff before it could receive same, even after the payment of said drafts, which said excess charges amounted to $502.32. Plaintiff also alleged demurrage charges of $12 resulted through failure of defendants to promptly forward the invoices and bills of lading.
Plaintiff further alleged a shortage of five sacks of sugar, the value of which, with the duty and freight, amounted to $29.80. Plaintiff alleged, in the alternative, that, if White-Grant Company were merely the agents of Lawrence in the sale of the sugar, it prayed judgment against Lawrence.
Lawrence answered by exceptions, general denial, that the telegrams, letters, and writings pleaded by plaintiff were not signed or accepted by him or by any one for him, that he was in no way connected with the same, denied that he ever agreed to repay the sums of money which plaintiff had paid out, denied that he ever authorized White-Grant Company to act for him in the transaction or in any manner to bind him, and denied that he or his codefendants knew of the prior freight or advance charges prior to and at the time of the sale of the sugar, and denied liability for same. He pleaded the statute of limitation of two years.
White-Grant Company answered by special exceptions, general denial, and alleged that they were acting merely as brokers for Lawrence, and quoted the prices of the sugar to plaintiffs as such brokers with the authority and consent and at the instance and request of Lawrence; that Lawrence received the entire consideration paid by plaintiff, and paid them only brokerage charges; pleaded that Lawrence acted upon and accepted their services, ratified and confirmed their acts, receive the benefit, and is estopped to deny their authority to act.
The case was tried with a jury, and submitted on special issues. The jury found:
First. That Lawrence placed the sale of the sugar involved in this suit with the White-Grant Company.
Second. That Lawrence held out the White-Grant Company as his agents in the sale of the sugar to the Cananea Stores.
Third. That Lawrence, after White-Grant Company made the sale of the sugar in question to the Cananea Stores, knew of the terms and conditions of the sale at the time he drew the drafts on the purchaser and forwarded the bills of lading and invoices to the Cananea Stores.
Fourth. The amount of the advances and charges accruing before the arrival of the sugar at El Paso, over and above the railroad freight to El Paso, and paid by the plaintiff, was $500.70.
The court rendered judgment in favor of plaintiff and against Lawrence for $710.99, with interest from the date of the judgment, January 20, 1921, and costs. Judgment was entered for White-Grant Company that they go hence without day and recover their costs of plaintiff. Lawrence prosecutes this appeal.
The court was not in error in submitting the issues to the jury and refusing to instruct the jury in Lawrence's favor as complained of in the five propositions under the first and second assignments. The correspondence by letters and telegrams as above, the drawing of the drafts and their payments, and the unpaid freight charges on the sugar before it reached New Orleans, and its payment by plaintiff and the necessity for its payment before plaintiff could receive the sugar from the railroad company, and the amount of it, are all undisputed facts. The letters and telegrams show an express contract in writing for the delivery of the sugar to plaintiff, free of any charges (f. o. b. cars El Paso) save and except the contract price of $3.88 per 100 pounds paid by plaintiff to Lawrence through his drafts, less the freight per car to El Paso.
The propositions presented and discussed by appellant, of voluntary...
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