Ross v. McLelland

• Citation: 281 S.W.2d 773
• Decision Date: 08 July 1955
• Docket Number: No. 15630,15630
• Court: Texas Court of Appeals
• Parties: W. R. ROSS and R. O. Sensibaugh, Appellants, v. J. E. McLELLAND, Appellee.

Page 773

281 S.W.2d 773

W. R. ROSS and R. O. Sensibaugh, Appellants, v. J. E. McLELLAND, Appellee.

No. 15630.

Court of Civil Appeals of Texas, Fort Worth.

July 8, 1955.

Rehearing Denied Sept. 16, 1955.

Brewster, Pannell, Leeton & Dean, W. C. Pannell and Leo Brewster, Fort Worth, for appellants.

Samuels, Brown, Herman & Scott, Ardell M. Young and William M. Brown, Fort Worth, for appellee.

BOYD, Justice.

Appellee J. E. McLelland recovered judgment against appellants W. R. Ross and R. O. Sensibaugh for $32,067.56. This is the second appeal of the case. A detailed statement of the background of the controversy will be found in the former opinion. Ross & Sensibaugh v. McLelland, Tex.Civ.App., 262 S.W.2d 205.

The suit arose out of a written contract made on February 23, 1951, between appellants as sellers and appellee as purchaser, for the sale and purchase of 1,500 cows, with calves thrown in, at $283.50 per head. The cows were on the W. R. Ross Ranch in King County, Texas, which ranch consisted of several large pastures. If requested, the cattle were to be delivered by pasture, provided the purchaser gave the sellers at least seven days notice on any delivery. The purchaser was allowed a ten per cent cut after all unmerchantable cows were taken out. Appellee deposited with appellants $40,000 cash as partial payment on the cattle; and the contract provided that appellee should pay in full for the first 500 cattle received, 'and as he receives the balance he is to deduct $40.00 per head until delivery is completed, where-in he will have received credit for the $40,000.00 deposit.' Delivery was to be made 'at shipping pens f. o. b. cars Benjamin, Texas from this date to June 1, 1951.'

By June 1, 1951, appellee had received 853 cows, and upon delivery had paid the full price of $283.50 per head for the first 500 head, and for all above the 500 he had paid $243.50 in cash, and from the deposit he was given credit for $40 for each cow. On that day, it was mutually agreed that the final delivery date would be extended to June 4, 1951. On June 4, 1951, appellee had on deposit with appellants the sum of $32,067.56, which included $25,800 out of the original $40,000 deposit, and credits for overpayments on earlier deliveries of $6,267.56.

The pleadings of all parties were amended after the first trial, and appellee went to trial on his third amended petition. The first count alleged the terms of the contract, alleged that appellants had breached the same, and that appellee had been damaged; the second count was in part as follows: 'In the alternative, and independently of all other grounds of recovery alleged and set forth herein, plaintiff says that defendants have in their possession the sum of $32,068 that rightfully belongs to this plaintiff, said sum being the balance remaining of the original $40,000 purchase money deposit paid by plaintiff to defendants at the time said contract was entered into, and payments made to the defendants in excess of the contract price of said cattle, and that plaintiff is entitled to recover said amount from said defendants as and for money had and received by them and wrongfully, injustly and inequitably withheld and retained. In this connection plaintiff would show that on June 4, 1951, the last and final date for performance of said contract, defendants Ross and Sensibaugh refused to deliver or tender for delivery to plaintiff any of the cattle then rounded up and ready for delivery, unless plaintiff would agree to comply with certain additional demands and requirements imposed by the defendants. Such demands were: first, that plaintiff pay in full for the cattle then rounded up at the contract price of $283.50 per head, without allowing credit for the $32,068 in money plaintiff then had on deposit with the defendants; secondly, that plaintiff agree to come back to the ranch at some later, unspecified date to accept delivery of additional cattle; and thirdly, that he, McLelland, leave on deposit with the defendants the sum of $5,000 as security for that portion of the contract relating to the sale of 40 bulls, even after the cow contract had been fully and finally performed.' He further alleged that time of delivery was of the essence of the contract.

The jury found: that time was of the essence of the contract; that on June 4, 1951, appellants refused to deliver the cows then rounded up unless appellee would agree to return to the ranch at a later date and accept delivery of additional cattle to be later rounded up; that appellants refused to allow appellee to take credit on the purchase price of the cows then rounded up for the full sum he then had on deposit with appellants; that appellants demanded that appellee pay the full price of $283.50 per head for all cows then rounded up and refused to allow him credit at the rate of $40 per head on said cattle; that appellants failed to tender for delivery the cows then rounded up; that appellants then had rounded up 432 merchantable cows over and above the ten per cent to be cut out; that on said date the cows were worth $255.15; and that appellee was ready, able and willing to pay for the cows then rounded up.

When appellee arrived at the ranch on June 4, 1951, appellant Sensibaugh was there. It is not contended by appellee that he was then ready and able to pay for the balance of...