Missouri-Kansas-Texas R. Co. v. Noble

• Citation: 271 S.W.2d 146
• Decision Date: 02 July 1954
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 15530,15530
• Parties: RAILROAD COMPANY OF TEXAS, Appellant, v. R. M. NOBEL, Jr., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 146

271 S.W.2d 146

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS, Appellant, v. R. M. NOBEL, Jr., Appellee.

No. 15530.

Court of Civil Appeals of Texas, Fort Worth.

July 2, 1954.

Rehearing Denied Sept. 17, 1954.

Fred L. Wallace, Fort Worth, for appellant.

Walker & Day, Joe Day, Jr., Fort Worth, for appellee.

MASSEY, Chief Justice.

The trial court entered a judgment for the plaintiff in a suit filed by him against a railroad to recover damages resulting from loss of profits on a transaction the plaintiff had contracted to make with a third person because of acts or omissions on the part of the defendant which defeated the transaction, and to recover other damages sustained by him pursuant to such transaction. Plaintiff claimed that he was persuaded or induced to purchase cattle for sale to the third person, with whom he contracted at a certain price, because of the fact that the appellant represented that it could and would ship the cattle at a certain time, and further because of the fact that under the circumstances existent, to-wit: the availability to defendant of cars by which the shipment could have been made, and defendant owed him the duty of shipping the cattle at such time. Plaintiff contended that since the defendant breached such duty to him, it was responsible for the difference between the price he would have received for the cattle had the shipment been made and the market value existent immediately following his discovery of defendant's breach of duty. Plaintiff prevailed by his suit and recovered damages arrived at by deducting the market value found by the jury to have been existent upon the next regular 'market day' following defendant's breach of duty, from the price plaintiff would have received from the third party had his contract not been defeated by the breach. From this judgment the defendant appealed.

Judgment affirmed.

Appellee R. M. Noble, Jr., is what is known as a 'commission man' at the Fort Worth Stockyards. Such a person makes his profit by reason of the fact that he sells at a greater price than the price he pays. Of course, when he buys at a certain time with the sale to be made at a later time he ordinarily undertakes the expense of lodging and maintenance of the cattle in the meantime. Where he utilizes the facilities of a service company, commonly called a 'commission company', in disposing of his cattle, he pays for the services.

On date of Friday, October 12, 1951, during the morning of that day and at a time when the regular cattle trading market on the Fort Worth Stockyards was open and active, the appellee learned of the availability of a certain herd of cattle, comprising 197 head, located in the pens at the market. He telephoned a prospective purchaser at Edna, Kansas, and made a contract with such prospective purchaser, the terms of which provided that such purchaser would buy said cattle and pay 20cents per pound therefor, multiplied by the total weight of said 197 head as weighed at Fort Worth on that day, provided the appellee could and would see that they went out on the train of appellant, Missouri-Kansas-Texas Railroad Company of Texas, leaving Fort Worth on the night of October 12th for Dena, Kansas. The purchaser agreed to pay the freight and other charges incident to transportation. In turn, the appellee called upon the owner of the cattle, and made a contract with him, the terms of which provided that appellee would buy said cattle and pay 19.75cents per pound therefor, multiplied by the total weight of said 197 head as weighed in Fort Worth on that day, provided appellee could arrange that they would go out on appellant's train leaving that night. Appellee then went to the proper office of the appellant company and there informed the appellant, through its agents, the fact that he could make both trades and that he would make them if the appellant could and would supply the seven or eight railroad cattle cars required for the transportation to Edna, Kansas, on that date and could and would make said cars, loaded with the 197 head of cattle, a part of the train leaving that night for Edna, Kansas. Appellee was advised that the cars were available and could be loaded with his cattle and as so loaded would be transported to Edna, Kansas, on the train leaving that night, and that he should 'go ahead and get his cows bought.'

These events occurred prior to the noon hour on date of October 12th. Appellee did not wait around appellant's offices and take the time to prepare an order in writing relating to any specific description of cars he desired, or to file any order in writing whatever, but left immediately and confirmed his purchase from the owner of the cows and consummated the purchase. He also attended to the necessary weighing and transferring of the cattle and he assumed control over them and had them moved into the proper place for loading onto appellant's cattle cars. Then the appellee returned to his offices which were located in the same building with the office of the appellant. The paper work connected with the ordering of the railroad cattle cars from the appellant to ship his cattle was attended to and his order therefor in writing was delivered to the office of the appellant, and into the hands of its agent. This took place between 1:30 o'clock and 2:00 o'clock in the afternoon on October 12th. Appellee then left the stockyards premises and went home. The cattle market ceased to be open and active at noon on that date, a Friday. The market does not and did not open the following day and it was also closed Sunday. The market does open on Monday, and it did open on Monday, October 15th, and became active during that day.

At about 4:30 o'clock on the afternoon of October 12th the appellee learned that the appellant was not going to ship the cattle that night. He went to the appellant's office to make inquiry and was advised by the appellant's agent that the cattle were not shipped as he anticipated because, as appellant claimed, it did not have the cattle cars in which to ship them that night. As a matter of fact, evidence adduced upon the trial showed that appellant could have furnished the necessary cars that day and if it had done so could have transported the cattle as appellee contemplated. Appellant indicated that it could and would ship the cattle the next day. Appellee then telephoned the Kansas customer to advise him and ascertain whether he would make the same contract formerly agreed upon, and pay the same price for the cattle though shipped at a later date. The Kansas customer refused to do so, but did counter with another proposition whereby the customer would take the cattle on delayed delivery at a lower price. This price would have been approximately $1,970 below the former price. Under the former price the appellee would have realized a profit of approximately $330, so under the Kansas customer's new proposition appellee would not only lose his profit, but about $1,640 in addition. He elected to hold the cattle until the regular market on the Fort Worth Stockyards opened on Monday, October 15th. No trade was ever made with the Kansas customer, the condition of the original contract having been unsatisfied.

When the regular cattle market became open and active on Monday, October 15th, it was discovered that the price for 'stocker cattle', the character of the 197 head in question, was not as good as that obtainable the previous week. Market values were lowered. Appellee's evidence relating to market value of his cattle demonstrated that their reasonable market value at that time would be based upon a poundage value of 16cents, multiplied by the number of pounds all the cattle weighed at the time. Appellee's evidence also showed that he sold the cattle in small lots, primarily through the services of several different commission companies, for which services he paid a price, obtaining a price per pound for each group sold which was greater than 16cents per pound. The prices obtained varied from 17.75cents per pound to 21cents per pound. Some of the lots were sold on October 15th, some on October 16th and some on October 17th. From the evidence, our calculation of the total weight of all the animals at the time they were sold amounted to 148,494 pounds, and the total gross price received therefor at $27,018.54. This figure is without consideration of expenses of maintenance until they were sold, expense of sale, etc.

The weight of the animals at the time they were weighed for purposes of determining what appellee's Kansas purchaser would owe him was 148.510 pounds, which under the contract would call for a price of $29,702. The jury found that the value of the animals on October 15, 1951, was $26,730, and seemingly they must have arrived at this figure by calculating a value per pound at 18cents rather than the 16cents appellee's expert testimony on market value demonstrated. This was more nearly in line with the price appellee actually realized as a net figure upon his sale of the cattle in smaller lots, though at a greater expense per animal sold.

By their answers to special issues submitted, the jury found that appellee's Kansas purchaser did contract with him to pay for the 197 head of cattle a price of 20cents per pound, conditioned upon their shipment on the 12th of October, 1951, with the purchaser to pay the frieght; that prior to the time of appellee's written requests for the necessary cattle cars to ship the cattle to Kansas appellant knew that appellee's contract with his Kansas purchaser was conditioned upon the cattle being shipped on October 12th; and that the appellant in the exercise of reasonanble diligence could have furnished the cattle cars and enabled a shipment of the cattle on October 12th as contemplated, after the time of day when it received the appellee's written request for such cars. They also found the market value of the 197 head of cattle on date of October 15, 1951, to...