MOURSUND, J.
In stating the case we avail ourselves, to a large extent, of the statement in appellant's brief:
"This suit was brought in the district court of Dimmit county, Tex., by the Valley Wells Truck Growers' Association and J. T. Baber, G. B. Penn, Alfonse Dauwe, O. A. Hiatt, Peter Hooge, C. P. Hooge, L. W. McCarley, Pol Michiels, H. D. Martin, W. B. McCarley, F. M. McCarley, B. F. McCarley, Leon McCarley, William O'Brien, S. J. Potter, J. F. Storoszyoszyn, Peter Storoszyoszyn, O. Vande Walle, Peter Vande Neut, Hector Williams, W. S. Wilburn, A. A. Hussey, I. H. Warren, C. H. Moore, Louie Kurianski, W. A. Jones, Frank Wolverton, W. A. Shumate, P. D. Woolwine, and A. H. Rife, as plaintiffs, against the Mayhew & Isbell Lumber Company, a corporation, as defendant. It was alleged that the association was organized and conducted for the mutual profit of its members, consisting of the aforesaid 30 individual plaintiffs; and it was also alleged that the association constituted a partnership composed of its said members. The association sued in its own behalf and also in behalf of its members. The suit was to recover damages in the sum of $29,710.00, alleged to have been sustained by reason of the breach by defendant of its contract to furnish plaintiffs with crates in which to pack their onion crops for 1917. The cause of action alleged by plaintiffs in their second amended original petition, on which the case was tried, is this:
"That plaintiffs are engaged in the business of growing onions for the market, and that in the spring of 1917 they had about 200 acres planted in onions, which they estimated would produce 300 bushels to the acre. That the onion is a perishable vegetable, which must be harvested as soon as same is matured in the field, and then packed in bushel crates and marketed at once, or same will deteriorate, rot, etc. That onions mature in that section from April 15th to May 15th. That, in order to be assured of crates in which to pack and market their said crop, plaintiff approached defendant on or about March 16, 1917, and told defendant that they would need 60,000 crates or more in which to hold, harvest, and sell their said crop, and that they would begin digging and crating about April 20th, and that they desired to buy crates, not as merchants or dealers to sell upon the market, but for the purpose of packing, harvesting, and selling therein their said crops. That 'the defendant on or about March 16, 1917, and on or about March 22, 1917, accepted an order from the plaintiffs for 60,000 bushel onion crates to be used by plaintiffs to pack, harvest, and market their 1917 crop in, and contracted and agreed to deliver to the plaintiffs immediately, f. o. b. Las Vegas, Tex., 30,000 Cummer pine onion crates, and further agreed to furnish the plaintiffs such additional Cummer pine onion crates, delivered f. o. b. Las Vegas, Tex., as needed by the plaintiffs to pack their 1917 onion crops, and the defendant agreed to sell these crates to the plaintiffs for the purpose of being used to pack their 1917 crop therein, at a price of 15 cents each, cash, or 15½ cents payable as the
onions were sold, and as a further consideration for said contract the defendant required of the plaintiffs that they pay on the purchase price of said onion crates $4,500.00 in cash, which cash payment the plaintiffs made in accordance with said contract, and the said contract was, on March 22, 1917, reduced to writing, and said contract was the joint contract of the plaintiffs with defendant.'" The contract then set out is copied in the findings of fact.
"The plaintiffs further alleged that by said agreement and in consideration of said cash payment, as hereinabove set forth, the defendant contracted and agreed to immediately deliver to the plaintiffs 30,000 Cummer pine onion crates, and agreed to furnish the plaintiffs such additional Cummer pine onion crates as they may require as needed to pack their 1917 onion crop, for the consideration of 15 cents per crate cash, or 15½ cents per crate when the onions are sold. That defendant knew all said facts, and knew that an unusually large onion crop was being raised in Texas in 1917, and that there was a scarcity of onion crates, and that the early onions to reach the market would command a higher price than those reaching the market later, and that plaintiffs would be unable to procure crates anywhere else in the event defendant failed to furnish same in accordance with said contract. That plaintiffs' said crop consisted of 60,446 bushels, and was matured in the field and ready to harvest on or before May 10th. That, had defendant complied with its contract and furnished said number of crates (60,446) to plaintiffs on or before said date, they could and would have marketed their entire crop on or before May 20th at $1.50 per bushel. That defendant furnished plaintiffs the first 30,000 crates in time, and plaintiffs marketed 30,609 bushels of their crop without loss. That defendant furnished plaintiffs 4,000 crates about May 20th and 4,000 more about May 27th, which were used by them; but that same were not furnished in time, and were furnished so late that the onions packed therein were damaged so that same had to be sold at a loss. That defendant thereafter furnished plaintiff 4,000 more crates, but same were delivered so late that they could not be used on account of plaintiffs' crop being entirely ruined when same were received. That defendant never furnished plaintiffs any more crates. That plaintiffs sold 17,322 bushels of damaged onions at a loss, and that the remainder of their crop (12,515 bushels) was a total loss. That plaintiffs 'frequently and constantly, to wit, every day from the time of entering into said contract until said onion crop was completely destroyed, * * * demanded crates of the defendant.' That they made every effort to get crates from other sources, but were unable to do so. That, by reason of the deterioration and destruction of their onions and the decline in the market price, due to defendant's failure to furnish crates in time and in accordance with said contract, plaintiffs were damaged in the net sum of $29,710.00, which damages were reasonably in contemplation of both plaintiffs and defendant at the time said contract was entered into as a probable result of the breach of said contract by deefndant. That said onion crops of plaintiffs were owned, raised, and harvested by the individual plaintiffs separately, but that the seed were obtained for them by the association, and the association looked after the marketing of the crops of its said members and purchased the crates in which to market same. That all the members were interested in the crop of each member, in that by the arrangements for seed, crates, packing, marketing, etc., a uniform pack and grade were secured and better prices obtained. That the contract to purchase crates from defendant was a joint contract and joint enterprise of all the plaintiffs. The petition and exhibits attached thereto show that there was no loss or damage to the crops of 10 of the individual plaintiffs. The exhibits show the acres planted in onions by each of the 20 individual plaintiffs who suffered damage to their crops, the number of bushels raised by each, the number of crates received by each in time and on which no loss was suffered, the number of bushels raised by each on which a loss was sustained, and the amount of loss sustained on the crop of each."
The defendant interposed pleas of misjoinder, a general denial, and a special denial under oath of the partnership. In addition, it pleaded various matters of defense which will be sufficiently disclosed in the discussion of the assignments of error.
"The plaintiffs, by supplemental petition, pleaded that defendant dealt with them as an association in the making of the alleged contract, and was estopped from denying their right to sue jointly as an association and as joint participants in a joint venture; to which plea defendant interposed a general denial. The plaintiffs, by trial amendment, pleaded that the alleged written contract sued on was accepted by them, and they became bound to purchase from defendant the crates needed by them to pack their 1917 crop in and pay therefor the stipulated purchase price, and became bound to accept from defendant and pay for the said 60,000 crates ordered by them from defendant as set forth in their petition, all of which defendant agreed to do. The defendant, by trial amendment, pleaded that all the crates furnished by it were not used for the purposes for which same were furnished, but that some of them were diverted from that use, to wit, about 2,000 of the said crates so furnished by defendant were sold to one Hendrickson, or were turned over to and used by him on terms unknown to defendant, and that this constituted a breach of the alleged contract, and that a part of the alleged damages was caused by reason of said crates not being used for the purposes for which same were furnished, to which plea plaintiffs interposed a general denial."
The venue was changed to La Salle county. The pleas of misjoinder were tried with the case on the merits and overruled. Judgment was entered for plaintiff association for and in its own behalf and in...
