Marcus v. Armer

• Decision Date: 18 April 1928
• Docket Number: (No. 4259.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 5 S.W.2d 960
• Parties: MARCUS et al. v. ARMER.
• Court: Texas Supreme Court

Page 960

5 S.W.2d 960

MARCUS et al. v. ARMER.

(No. 4259.)^*

Supreme Court of Texas.

April 18, 1928.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by L. E. Armer against E. A. Marcus and another. From an order overruling defendants' plea of privilege, they appealed to the Court of Civil Appeals, which certified to the Supreme Court the question whether the trial court erred in overruling such plea. Question answered in the negative.

See, also, 253 S. W. 588.

White, Wilcox & Graves, J. Harris Gardner, and Black & Graves, all of Austin, for appellants.

Garrett, Brownlee & Goldsmith, of Austin, for appellee.

GREENWOOD, J.

Certified question from the Court of Civil Appeals of the Fourth Supreme Judicial District of Texas.

The honorable Court of Civil Appeals makes the following statement and propounds the following question to this court, to wit:

"This appeal is from an order made by the district court of Travis county, overruling a plea of privilege filed by E. A. Marcus and another to be sued in Burnet county, in which they reside. The suit was for damages for breach of contract in which appellant Marcus, a resident of Burnet county, is alleged to have obligated himself to sell and deliver 25 tons of cottonseed to appellee, Armer, in Travis county. It was alleged that Armer purchased the seed by sample, which tested `95 per cent. germination,' whereas, the seed actually delivered to him tested only `48 per cent. germination.' It was alleged that this contract was performable by Marcus in Travis county, and that venue of the suit against him lay in that county by virtue of the exception embraced in subdivision 5, art. 1830, the general venue statute.

"The terms of the contract of purchase and sale, none of which were in writing, are thus stated by the court below: `The court is further of the opinion, and finds from the evidence, that the plaintiff about the time alleged (December 1, 1919), was in Bertram, Burnet county, Tex., and purchased orally from the defendants a carload of cotton planting seed at the price of $112.50 per ton and deposited $100 on the purchase price; that the plaintiff wanted the cottonseed sacked, and it was understood between the parties either at that time or later that the plaintiff was to furnish the sacks and pay for the labor of putting the seed in the sacks, and defendants were to load the sacked seed in the car, and the plaintiff was to pay the freight on the seed from Bertram, it being understood between the parties that the plaintiff would later notify the defendants the place where the car of seed was to be shipped. * * *'

"The court finds that, in pursuance of this oral contract, the parties performed, as follows: `That during the latter part of January, 1920, the plaintiff notified the defendants to ship the seed to Austin, Travis county, Tex., and that on or about the 14th day of February, 1920, the defendants, having loaded the sacked seed in the car at Bertram, procured from the railroad company at Bertram a "shipper's order" bill of lading covering the seed, consigned "to shipper's order, notify M. Armer, Austin, Tex.," and the defendants drew a draft on the plaintiff for the price of the seed, less $100 theretofore deposited, and indorsed said bill of lading and draft to the plaintiff upon his paying the amount stated in the draft, and that plaintiff paid the draft, got the bill of lading from the bank, and presented same to the railway company at Austin and paid the freight charges, and the car of seed was delivered to him.' And concludes as a matter of law: `The court further finds that by causing said car of cottonseed to be shipped in the manner above stated the defendants became obligated upon a contract in writing, to wit, the bill of lading and draft above referred to, performable in Travis county, Tex., and that said suit therefore falls within exception of subdivision 5 of the venue statute.'

"It is contended that, although the contract for the purchase and sale of the cottonseed was made orally, and not in writing, the subsequent act of the seller, in consigning the seed to Armer on an `order' bill of lading, and forwarding this bill of lading, with sight draft attached, through banks, to Armer at Austin, constituted a written obligation on the part of the seller to deliver the seed in Travis county; that this act converted the original oral contract into one in writing, performable by the seller in Travis county, whereby the transaction was brought within the purview of said subdivision 5. * * *

"Upon the recommendation of the Commission of Appeals, your honorable court has issued its writ of mandamus requiring this court to certify the question involved, and in obedience to said writ we respectfully certify to your honors for decision the following question: Did the trial court err in overruling the plea of privilege under the facts as alleged and proven?"

Under the original oral contract, the sellers' obligations were to be performed at Bertram in Burnet county. Under the contract the buyer was bound to pay the purchase price, less his deposit, in cash. Upon the specific seed contracted for being put aside in a deliverable state and the balance of the purchase price being paid, the property in the seed would have passed at Bertram to the buyer. Cleveland v. Williams, 29 Tex. 209, 94 Am. Dec. 274; Owens v. Clark, 78 Tex. 551, 15 S. W. 101. Any breach of the contract by the sellers, such as that arising from inferior quality of the goods shipped, would have arisen at Bertram. However, the parties had a perfect right, if they so desired, to change the original contract, and to provide for the cottonseed to be shipped from Bertram in advance of the payment of the full purchase price, and to bind the sellers to deliver the seed at Austin upon payment there of the balance of the purchase money.

While the question is one involved in much confusion of thought, we have concluded that we conform to the real intention of the parties, when we construe the shippers' order bill of lading and attached sight draft, in this case, as an offer in writing by the sellers, accepted by the buyer, modifying the original verbal agreement so as to make Austin the place of delivery of the cottonseed, and so as to prevent the title to the seed from passing to the buyer until payment of the draft.

We regard as unassailable the following conclusions of Mr. Benjamin:

"If A. in New York orders goods from B. in Liverpool without sending the money for them, B. may execute the order in one of two modes, without assuming risk. B. may take the bill of lading, making the goods deliverable to his own order, or that of his agent in New York, and send it to his agent, with instructions not to transfer it to A. except on payment for the goods. Or B. may draw a bill of exchange for the price of the goods on A., and sell the bill to a Liverpool banker, transferring to the banker the bill of lading for the goods, to be delivered to A. on due payment of the bill of exchange. Now in both these modes of doing business, it is impossible to infer that B. had the least idea of passing the property to A., at the time of appropriating the goods to the contract. So that, although he may write to A., and specify the packages and marks identifying the goods, and although he may accompany this with an invoice, stating that the specific goods are shipped for A.'s account, and in accordance with A.'s order, making his election final and determinate, the property in the goods will nevertheless remain in B. till the bill of lading has been indorsed and delivered up to A." Benjamin on Sales (6th Ed.) pp. 420, 421.

Professor Williston says:

"It follows from what has been said that if the seller takes a bill of lading in which he is named as consignee as well as consignor, the carrier is a bailee for the seller, not the buyer, and the title is retained. The practice of taking bills of lading in this form has been common for centuries in order to preserve to the seller a hold upon the goods during transit, and many cases have sustained the validity of this retention of title. This principle is applicable even though the goods are shipped on the buyer's vessel, for the captain having authority to sign bills of lading by so doing constitutes himself as an independent bailee of the goods for the shipper. It is commonly said that the seller by taking the bill of lading in his own name reserves the jus disponendi or right of disposal of the goods, and the latter expression is used in the section of the English Sale of Goods Act corresponding to that here under discussion. There seems no doubt that the seller who thus consigns the goods to himself has complete control over them, and that the so-called jus disponendi is in fact...