Milburn Manuf'G Co. v. Peak

• Decision Date: 10 February 1896
• Citation: 34 S.W. 102
• Parties: MILBURN MANUF'G CO. v. PEAK.
• Court: Texas Supreme Court

34 S.W. 102

MILBURN MANUF'G CO. v. PEAK.

Supreme Court of Texas.

February 10, 1896.

Case certified from court of civil appeals of Second supreme judicial district.

Action between the Milburn Manufacturing Company and Mrs. Florence Peak. From the judgment the Milburn Manufacturing Company brings error. Case certified from the court of civil appeals.

R. Y. Prigmore and Nugent & Essex, for appellant. Ross & Terrell, for appellee.

DENMAN, J.

The court of civil appeals have certified to us the question: "Whether the contract hereinafter set out had the effect of merely making Hood & Co. the factors of appellant, or whether they thereby became the vendees of appellant; that is to say, whether the contract should be construed on its face as one of consignment merely, or one of sale."

The contract referred to in the above certificate is, in substance, as follows: "This agreement between Milburn Manufacturing Company, party of first part, and Hood & Co., party of second part, witnesseth: (1) That first party agrees to manufacture and ship to second party the following described vehicles, to be sold and accounted for to first party in cash or purchaser's note, as herein described, at the prices herein stated [here follows detailed description of vehicles and prices]. All notes to be on blanks furnished by first party, second party to see that the blanks therein retaining a mortgage on articles sold are properly filled out, and that a mortgage is thereby created, and second `party shall have no authority to take notes not in accordance with this provision.' (2) That second party agrees to receive, store, pay freight, and keep under cover and in good condition, and fully insure, at their own expense, in the name and for the benefit of first party, all vehicles sent, until sold by second party, or ordered away by first party, as herein provided; to pay all taxes on all vehicles; to make all reasonable efforts to sell same; to settle for all vehicles sold; to make all sales, and take all evidence of indebtedness therefor, for and in the name of first party; to remit the cash and notes received for said vehicles to first party. All notes so transferred to be indorsed and guarantied by second party, who agrees to take up and pay cash for all of such notes as should not be paid in 60 days after maturity. Second party to make no charge against first party for selling, storing, or handling the vehicles. Their sole commission and compensation for doing such business to be the margin or difference between the prices herein stated and the prices at which said vehicles shall be sold, to be ascertained and received by first party. Second party agrees to sell all the vehicles under this contract within 12 months, and, in case of failure or neglect to do so, `to settle for those remaining unsold in the...