Mayfield Woolen Mills Co. v. Long

• Citation: 119 S.W. 908
• Parties: MAYFIELD WOOLEN MILLS CO. v. LONG.
• Decision Date: 21 April 1909
• Court: Texas Court of Appeals

119 S.W. 908

MAYFIELD WOOLEN MILLS CO. v. LONG.

Court of Civil Appeals of Texas.

April 21, 1909.

Rehearing Denied May 26, 1909.

Appeal from Runnels County Court; B. B. Stone, Judge.

Action by the Mayfield Woolen Mills Company against Ben S. Long. Judgment for defendant, and plaintiff appeals. Affirmed.

Harris & Shephard and Prendergast & Williamson, for appellant. John I. Guion and M. C. Smith, for appellee.

RICE, J.

This was a suit by appellant against appellee upon two promissory notes for $500 each, for the recovery of an alleged balance of $649.47 thereon. Appellee answered: That the notes in question were fully paid off prior to the institution of said suit; that in May, 1905, he was largely indebted to appellant, including the notes sued on, and had a final settlement of said indebtedness with appellant, whereby he shipped to appellant certain goods and merchandise, amounting to the sum of $2,005.18, and paid appellant $109 in cash, which said merchandise and cash were accepted by appellant in full settlement of all amounts then due and held by it against appellee. Appellant replied by supplemental petition, alleging: That prior to the shipment of said merchandise there was an agreement between appellee and itself, to the effect that he would ship to it about $1,000 worth of goods in payment of a part of his indebtedness; that thereafter appellee made a proposition to its agent, Spinks, to the effect that he would ship from $2,000 to $2,500 of merchandise then on hand, which he had bought of appellant, and pay $109 in cash, in settlement of his indebtedness; that thereafter, and before its acceptance of said proposition, appellee had made the several shipments under the original agreement; that it subsequently accepted said proposition, and in which it was contemplated that a subsequent shipment of merchandise would be made to it by appellee, which was never done, alleging that said settlement so pleaded by appellee was made by its agent, Spinks, upon the promise that appellee would make said additional shipment of merchandise. It further alleged: That Spinks had no authority from it to accept less than the full amount of appellee's indebtedness; that all goods so shipped to and received by it were to be credited to appellee at the invoice price, which had been done; and that, after crediting his said account with said goods and the $109 in cash, appellee was still indebted to it in the sum sued for. It likewise pleaded that, notwithstanding the fact the appellee had agreed to return all goods purchased by him from appellant, supposed to amount to about $4,000, after making said proposition to its agent, Spinks, without its consent, he had shipped to his brother some $800 worth of said goods in fraud of appellant's rights. By supplemental answer appellee pleaded that said settlement as made with Spinks was in full of all demands held by appellant against him, and that such settlement was fully authorized and ratified by appellant, and that it had not returned any of the merchandise received by it, nor the cash so paid to it. There was a trial by the court and judgment rendered in behalf of appellee and against appellant, from which this appeal is prosecuted.

By its first and third assignments, it is urged on behalf of appellant that, since there was no dispute as to the amount of the indebtedness, and as the payments made were less than the full amount due, the judgment in behalf of appellee was erroneous....