Pruitt Commission Co. v. Fruit Dispatch Co.

• Decision Date: 15 June 1910
• Citation: 129 S.W. 1150
• Parties: PRUITT COMMISSION CO. v. FRUIT DISPATCH CO.
• Court: Texas Court of Appeals

129 S.W. 1150

PRUITT COMMISSION CO. v. FRUIT DISPATCH CO.

Court of Civil Appeals of Texas.

June 15, 1910.

Appeal from Bexar County Court; Phil. H. Shook, Judge.

Action by the Fruit Dispatch Company against the Pruitt Commission Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Davis & Lipscomb, for appellant. Houston, Boyle, Storey & Davis, for appellee.

JAMES, C. J.

The appellee sued to recover the price of a shipment of bananas. Defendant (appellant) set up that they had ordered one car load of Limon Firsts bananas, which term, "Limon Firsts," means unbruised green bananas in first-class shipping condition, and that notwithstanding this order plaintiff shipped and delivered to the transportation company at New Orleans rotten, bruised, ripe, turning, and unmerchantable fruit, and in such unsuitable and damaged condition that it would not ship from New Orleans to San Antonio, and arrive in good condition and as ordered by defendant, and that if the bananas had been sound, green, unbruised, and in merchantable condition, and as ordered by defendant, the same would have arrived at San Antonio, considering the temperature of the weather and the condition of the vents during transit, sound, green, and in good condition, and as ordered, and that defendant never received nor accepted the bananas. The answer alleged that prior to the date of said order, to wit, on or about December 1, 1906, defendant had a distinct agreement and understanding with the Texas agent of plaintiff at San Antonio, Tex., * * * that from and after said date, unless otherwise specified, when defendant ordered from plaintiff, through its Houston office or otherwise, bananas, and especially "Limon Firsts," only sound green bananas should be shipped defendant, and not ripe and turning and rotten fruit, and that the bananas on arrival at San Antonio were rotten, ripe, and turning, bruised and damaged, and not as ordered, and as a consequence defendant rejected same. A verdict was returned for plaintiff by instruction of the court. This instruction is alleged as error.

The principle of law invoked is that the buyer is not required to receive goods which are not the goods he ordered or agreed to purchase. The rule is well established. Mechem, Sales, § 1154. Here was a specific order for a shipment of "Limon Firsts." If that which was shipped under the order did not answer the description of "Limon Firsts," the purchaser had the right to reject same....