San Antonio Gas & Electric Co. v. Marx

• Decision Date: 31 May 1905
• Citation: 87 S.W. 1166
• Parties: SAN ANTONIO GAS & ELECTRIC CO. v. MARX.
• Court: Texas Court of Appeals

87 S.W. 1166

SAN ANTONIO GAS & ELECTRIC CO. v. MARX.

Court of Civil Appeals of Texas.

May 31, 1905.

Appeal from Bexar County Court; R. B. Green, Judge.

Action by A. Marx against the San Antonio Gas & Electric Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Geo. B. Taliaferro, for appellant. Keller & Keller, for appellee.

FLY, J.

Appellee sued appellant in the justice's court to recover the sum of $160 damages alleged to have accrued by reason of the breach of a contract of sale of scrap copper. The court rendered judgment for appellee for the amount sued for.

The alleged contract was based on letters and telegrams interchanged between the parties. On January 9, 1903, appellant telegraphed appellee inquiring what he would pay for one car load clean scrap copper, to which appellee answered, asking lowest cash price for the car of copper. Appellant then wired that its price was 11 cents per pound, and that was answered by an offer of 10½ cents on cars at San Antonio. On same day appellee wrote a letter confirming offer of 10½ cents. Appellant wired as follows: "Accept ten and a half cents on all on hand, probably seven or eight tons." In answer to that message appellee wrote: "Your telegram of last night accepting my price of 10½c. per pound for a car load of clean copper received, but your telegram reads seven to eight tons. I had offered a car load based on your accepting it, and trust that you will make it convenient to find sufficient to make up a minimum car load. I will write you in a day or two again giving you shipping instructions on same, as I am negotiating a through rate for it from San Antonio. In the meantime I would like to known just what the copper consists of. I imagine it is all wire from electrical machines the same as we handle here and perhaps some trolley wire from street cars. There is no doubt but that all the insulation is all burnt off, and that the wire is perfectly clean, as I do not wish to have any trouble with the parties to whom I am going to ship it." In reply to that letter appellant wrote that the insulation was burned off the wire, and that it was thought that there was from six to eight tons of it, and wrote that if appellee did not care to take it he could advise appellant and it could be held a little longer. In reply appellee instructed a shipment as early as possible, and to put in enough scrap iron to make up the car load, and ship it as a car load of "junk." In reply appel...