Parks v. O'Connor

• Decision Date: 27 March 1888
• Citation: 8 S.W. 104
• Parties: PARKS v. O'CONNOR.
• Court: Texas Supreme Court

8 S.W. 104

PARKS v. O'CONNOR.

Supreme Court of Texas.

March 27, 1888.

Appeal from district court, Goliad county; H. C. PLEASANTS, Judge.

Action by Thomas O'Connor, appellee, against the appellant, Solomon Parks, to recover the price of cattle sold appellant.

A. B. Peticolas, D. D. Claiborne, and C. H. Morris, for appellant. Glass & Callender, Stockdale & Proctor, and R. W. Stayton, for appellee.

GAINES, J.

This suit was brought by appellee to recover of appellant the price of 5,384 head of cattle delivered by appellee to appellant under a contract which is in writing, and which, in substance, is as follows: Appellee agreed to sell and deliver to appellant "8,000 head of mixed yearlings, (steers and heifers,) all to be good merchantable cattle," in three herds; the first herd to be delivered May 15, 1885, and the other two as soon thereafter as practicable; in consideration of which appellant agreed to pay appellee eight dollars per head for the cattle so delivered, and for the purchase money so promised, to execute to appellee two promissory notes payable on or before a date 12 months after the delivery of the first herd; the notes to bear 12 per cent. per annum interest from date, and to be secured by a mortgage upon certain lands and cattle belonging to appellant, and also upon the cattle so sold. Appellee alleged in his petition the delivery and acceptance of 5,384 cattle under the contract, and a tender of 2,616 yearlings such as were called for in the contract, and appellant's refusal to accept the latter. He also alleged appellant's failure to pay for the cattle received by him, and his refusal to execute the note and mortgage stipulated for in the agreement. He prayed a judgment for the purchase money of the cattle delivered at the contract price, with interest at 12 per cent. per annum from the time of the delivery, and for a decree enforcing the lien upon the property described in the agreement.

By the first assignment or error it is complained that the court erred in overruling defendant's exception to so much of the petition as sought to recover the conventional interest of 12 per cent. The fourteenth assignment is to the effect that the court erred in charging the jury to allow interest at the stipulated rate. These are based upon the proposition that, because the contract was not fully consummated, and the notes were not given, interest at the rate agreed upon could not be recovered. But the proposition is not sound. The plaintiff alleged an offer fully to comply with the contract on his part, and the defendant's refusal; and, clearly, the measure of his damage as to the cattle delivered and accepted was the contract price, and interest at the rate and from the date set forth in the agreement. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. Rep. 666; Bank v. Satchleben, 67 Tex. 420, 3 S. W. Rep. 733.

It is also complained that the court erred in not striking out, upon defendant's exception, so much of the petition as sought to enforce a lien upon the property therein described. This assignment is not well taken. The plaintiff averred a substantial compliance with the contract upon his part. This entitled him to have it enforced according to its terms, to the extent that defendant had actually received cattle under it. A written agreement to give a mortgage, with which the party entitled thereto has complied, is treated in equity as a mortgage, and will be enforced as such between the parties to the original transaction. Railway Co. v. Gentry, ante, 98, (decided at this term.)

Defendant pleaded in his answer that, after the execution of the contract, plaintiff agreed that he could sell or ship a portion of the cattle upon which the mortgage was to be executed; and also that plaintiff, after the delivery of the second herd, never delivered or tendered the additional cattle required for the completion of the contract on his part, and claimed that thereby the lien was waived and discharged. Exceptions to these allegations were sustained by the court, and the ruling is assigned as error. It is undoubtedly true that if a party who has a lien upon property consents to an absolute sale of the same, and it is accordingly sold, the lien is thereby waived as to the property so sold; but it does not follow that if he consents to a sale of a part of it merely, that he relinquishes his lien upon the part to the sale of which he did not consent, or upon so much of it as is not actually sold. The defendant does not allege any consideration for plaintiff's agreement that he might sell or ship the cattle, and we think it clear that the agreement was not binding, and that plaintiff did not thereby waive his right to a mortgage as to any of the property which was not actually disposed of by his permission. As to so much of the answer as claims a discharge of the lien by reason of plaintiff's failure to deliver the full number of cattle, this is to be said: that, if he did make such failure, it was defendant's right to tender back the cattle, and claim a rescission of the contract. He cannot hold the cattle already delivered under the agreement, without paying according to its terms. To hold that he can retain what he has already received, and be held to account merely for the value as a simple debt discharged of any lien, would be to hold the plaintiff to a contract to which he never agreed. If he has suffered damage by plaintiff's failure, his damages would be a proper subject of counter-claim, and could be set off against plaintiff's demand.

In regard to the third assignment of error, it is sufficient to say that it does not appear, from the allegations of the answer which are there brought in question, that the losses there claimed by defendant were in the contemplation of the parties at the time the contract was entered into. Express Co. v. Darnell, 62 Tex. 639. The inference from the averments is that the contract to deliver a part of the cattle to Shiner and Williams was made after the execution of the contract with plaintiff; so that, in our opinion, the latter would not be liable for any damage incurred by defendant by reason of his failure to make a timely delivery to them, although such failure was caused by plaintiff's dereliction in failing to make delivery according to the terms of his agreement with defendant.

It was urged by defendant below, and is insisted here, that the second herd of cattle delivered by plaintiff were not in accordance with the terms of the contract, and that he should not be compelled to pay for the same according to the contract price. He admits, however, that he received the cattle, though under protest; claiming that he was forced by the exigencies of his business to take the cattle for delivery upon contract with third parties, which he then had outstanding. But if the cattle tendered him were not such as were called for in his agreement with plaintiff, and he knew this, he should have rejected them. When a purchaser, under an executory contract for the sale and delivery of personal property, inspects the same before delivery, he is estopped...