Sackville v. Storey

• Decision Date: 08 May 1912
• Citation: 149 S.W. 239
• Court: Texas Court of Appeals
• Parties: SACKVILLE et al. v. STOREY.

149 S.W. 239

SACKVILLE et al. v. STOREY.

Court of Civil Appeals of Texas. San Antonio.

May 8, 1912.

Rehearing Denied June 26, 1912.

Appeal from District Court, Frio County; J. F. Mullally, Judge.

Action by H. A. Sackville and another against H. C. Storey. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

R. W. Hudson, of Pearsall, and Jas. D. Crenshaw, of San Antonio, for appellants. A. B. Storey, of San Antonio, O. T. Brown, of San Marcos, and W. H. Lipscomb, of San Antonio, for appellee.

MOURSUND, J.

Appellants were plaintiffs below, and sued appellee, alleging: That defendant by his duly authorized agent, S. H. Ellis, entered into a written agreement with plaintiffs to be performed in Frio county, Tex., in which defendant agreed to purchase from plaintiffs 250 head of steer cattle at $37.50 per head at their ranch near Dilley, Tex., the same to be the top cut of all steers then on plaintiffs' said ranch. That, when said contract was made, defendant, through his said agent, Ellis, paid plaintiffs $50 in part payment for said cattle, and on or about November 16, 1910, before said cattle were rounded up and ready to be passed on, defendant paid $250 more on said contract. That soon thereafter, on November 12, 1910, plaintiffs began to gather their steer cattle, and place them in a small pasture, so that defendant could select the 250 head, and that all of their steer cattle, amounting to about 400 head, were gathered and ready for defendant to make his selection on the day specified in the contract. That the cattle were held in the small pasture about five days, waiting for defendant to cut or select said steers according to contract. That the water and feed in such pasture was necessarily limited, which was known to defendant. That by reason of the necessary running of said cattle in rounding them up, and by reason of their being held in a small pasture, they lost in weight about 100 pounds per head, to plaintiffs' damage $1,760. That plaintiffs were also damaged in the sum of $50 by reason of hire of hands and use of horses in gathering said cattle. That at the time the cattle should have been received and accepted by defendant the market value thereof had declined $2.50 per head from the price defendant agreed to pay for same, to plaintiffs' damage $625. For all of which damages plaintiffs sued.

Defendant filed general demurrer, general denial, and special answer, alleging: That he had submitted an offer through said Ellis as agent of plaintiffs to purchase 250 head of steer cattle from plaintiffs to be selected from their herd of 380 to 400 head of fours and up, and to be delivered 20 miles on the road towards defendant's ranch. That by "fours and up" was meant that all steers should be not less than four years of age, and it was so understood by all parties. That shortly thereafter Ellis told him his offer was accepted, that the trade had been closed, that he had paid $50 on the trade, and it was necessary for defendant to advance $250 more. That he understood every material part of his offer had been accepted, and on November 18, 1910 he started to the Sackville ranch for the purpose of carrying out his part of the contract, but while at Dilley, on his way to said ranch, he was shown the written contract pleaded by plaintiffs, and that same was not his contract; that he never made it or authorized Ellis to make it for him; that he never consented to its stipulations; that he was not at any time a partner of Ellis, nor a joint contractor with him; and that Ellis was never his agent for any purpose; that said contract, if made, was a fraud on him, because it imposed on him conditions and stipulations to which he had never agreed or consented, and because, as soon as apprised of its contents, he repudiated the same, and notified plaintiffs in person that he would not recognize it as binding nor perform it. He also alleged that, if plaintiffs suffered damage, they contributed by their own negligence to the injuries complained of; that at the time he notified appellants he would not recognize or perform said contract they negligently proceeded to gather and hold said cattle; that, if said cattle were of the market value of $37.50 per head at the time when he refused to perform said contract, plaintiffs, by the exercise of reasonable diligence, could have sold the same to some other person or persons at that price, but that plaintiffs negligently and willfully withheld said cattle from the market, well knowing that the market value thereof was likely to decline; that any money paid by Ellis as a forfeit was without defendant's knowledge or consent and unauthorized by him.

Upon trial before a jury, a verdict was returned for defendant, and judgment entered accordingly, from which plaintiffs appealed.

Appellants' first assignment of error complains of the giving of special charge No. 7, as follows: "In his answer, the defendant, in reply to plaintiffs' petition, alleges that plaintiffs were themselves negligent in handling and holding the cattle for delivery, and in this connection and upon this issue you are further charged as follows: If you believe from the evidence that the plaintiffs were themselves negligent in gathering and holding said cattle, and that such negligence on the part of plaintiffs contributed to cause such injuries, if any, to the cattle, you will not find in favor of plaintiffs on account of any injuries to the cattle by gathering and holding them for delivery. Given, with this definition by the court: `Negligence' as used in this charge means the failure to exercise ordinary care; and `ordinary care' is the degree of care that a person of ordinary prudence would exercise under like circumstances." The contention is made that the issue thereby submitted was not raised by the evidence. Defendant pleaded that plaintiffs were negligent in continuing to gather and hold the cattle after he notified them that he would not recognize nor perform the contract; also, that plaintiffs could have sold the cattle to other persons at same price the contract specified, but negligently and willfully failed to do so. There is no evidence that the cattle could have been sold to other parties, nor that there was any rough or unusual handling of the cattle in gathering or holding them. They were placed in a trap containing between 300 and 400 acres, which was bare of grass and had little water. H. A. Sackville, one of the plaintiffs, testified they began active gathering on Thursday morning and gathered until defendant came out which was about 10 or 11 o'clock on Friday, the 18th. At another place in the statement of facts his testimony shows they began gathering on the...