Lee v. Gilchrist Cotton Oil Co.

• Decision Date: 24 October 1919
• Docket Number: (No. 6109.)
• Citation: 215 S.W. 977
• Parties: LEE v. GILCHRIST COTTON OIL CO.
• Court: Texas Court of Appeals

Page 977

215 S.W. 977

LEE v. GILCHRIST COTTON OIL CO.

(No. 6109.)

Court of Civil Appeals of Texas. Austin.

October 24, 1919.

On Motion for Rehearing, November 19, 1919.

Appeal from Lampasas County Court; J. Tom Higgins, Judge.

Suit by Gilchrist Cotton Oil Company against Z. P. Lee. Defendant's plea of privilege to be sued in Leon county overruled, and defendant appeals. Reversed with instructions.

W. H. Browning, of Lampasas, for appellant.

Word & Walker, of Lampasas, for appellee.

Findings of Fact.

JENKINS, J.

This suit was brought in the county court of Lampasas county, by appellee to recover damages of appellant for failure to ship three cars of cotton seed upon the following contract:

"Gilchrist Cotton Oil Co.

                             "Lampasas, Texas, 9/29/1917
                

"Bought of Z. P. Lee, 3 cars of sound clean cotton seed at $69.00 per ton f. o. b. cars Jewett destination weights guaranteed. Gilchrist Cotton Oil Co. J. E. Carson, Buyer, Gilchrist Co. Co.

"Accepted: Z. P. Lee, Seller, C. B. K."

Jewett is in Leon county, Tex. The contract was written at appellant's gin in Leon, county.

Appellant filed his verified plea of privilege, in proper form, to be sued in Leon county. Appellee controverted this plea under oath, alleging that under the contract sued on appellant was to deliver the cotton seed at Lampasas, Tex. The court overruled appellant's plea of privilege; to which appellant excepted, and has brought the case to this court for revision.

Opinion.

Appellee objects to the consideration of appellant's brief as not being in accordance with rules. While the rules are not technically complied with in some respects, they are in spirit, in that the brief clearly presents the points relied upon for reversal with such specific references to the record as enable us to apply the facts without unnecessary labor in searching the record.

The questions determinative of this appeal are:

(1) Does the contract show upon its face, either expressly or by implication, that the cotton seed were to be delivered in Lampasas county?

(2) Was it permissible to explain the contract by oral evidence?

(3) Does the oral evidence show that the cotton seed were to be delivered in Lampasas county?

For reasons hereinafter stated, we answer each of these questions in the negative.

What was the contract? On the part of the seller, to deliver the cotton seed. On the part of the buyer, to pay for them. How was the delivery to be made? By putting the seed on board of cars. "F. o. b." means "free on board of cars." "Free" means without expense to the buyer. "On board of cars" shows how the delivery is to be made, and, in the absence of any words indicating the contrary, means at the place of sale, or the nearest station thereto. 35 Cyc. p. 108; 23 L. C. L. 1337; Biggers v. Hammer, 204 S. W. 493. In the instant case the place of delivery is fixed by the words "f. o. b. Jewett."

Do the words, "destination weights guaranteed," render doubtful the express provision that the delivery was to be made at Jewett? We think not. These words simply show that it was in contemplation of the parties that the cotton seed would be shipped to some point other than that at which they were received—in this instance to Lampasas—and that the weight at that point would be accepted as correct by the seller. The fact that goods were to be shipped to a certain point does not make the price payable at that point. This amounts to no more than a mere shipping direction which obligated the seller to bill the goods to that point. Bewley v. Schultz, 115 S. W. 294; McCullar v. Higginbotham, 118 S. W. 885. When goods are delivered to a carrier at the point of delivery to be transported to another point, they become the property of the buyer. The carrier becomes his agent to receive and ship them as directed.

The weight in this case was unimportant, except as determining how much the appellee was to pay. It was held in Neimeyer Lumber Co. v. Burlington & M. R. R. Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A. 534, that the words in the contract, "price f. o. b. Omaha," related only to the price to be paid, and not to the point of delivery. We hold that evidence seeking to vary, by proof of custom, the well-established meaning of the words "f. o. b.," was inadmissible. Sheffield Furnace Co. v. Hull, 101 Ala. 446, 14 South. 672.

Does the oral testimony, admitted by the court over appellant's objection, show that appellant was to deliver the cotton seed at Lampasas? We think not. The only testimony on this point was by Carson, who made the contract on the part of appellee, and is as follows:

"I have bought a good many cotton seed, and am familiar with contracts of this kind. Among oil mill men, the words in the contract, `f. o. b. cars Jewett,' mean that they were to be delivered on the cars at Jewett without cost to the buyer, but the buyer was to pay the freight to destination. The words, `destination weights guaranteed,' in the contract mean that the three cars were to be delivered at Lampasas, in Lampasas county."

"Were to be delivered at Lampasas," by whom? The witness did not state. He who claims the benefit of an exception must bring himself clearly within such exception. Cohen v. Munson, 59 Tex. 237; Chamberlain v....