Sanders v. Elberta Fruit Co.

• Decision Date: 09 November 1916
• Docket Number: (No. 1675.)
• Parties: SANDERS v. ELBERTA FRUIT CO.
• Court: Texas Court of Appeals

190 S.W. 817

SANDERS v. ELBERTA FRUIT CO.

(No. 1675.)

Court of Civil Appeals of Texas. Texarkana.

November 9, 1916.

Appeal from Smith County Court; Jesse F. Odom, Judge.

Action by Joe A. Sanders against the Elberta Fruit Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded.

N. W. Brooks, of Tyler, for appellant. J. A. Bulloch, of Tyler, for appellee.

LEVY, J.

The appellant claims that the appellee, a private corporation, is indebted to him in the sum of $141.97 for a certain number of pounds of tomatoes sold and delivered to its authorized agent at Bullard, Tex., in June, 1915. And the appellee pleads a denial of the purchase of the tomatoes by it or by any one having authority from it to do so. The court, after all the evidence was in, peremptorily instructed the jury to return a verdict in favor of the defendant. And the question presented for review on appeal is that of error or not in giving the peremptory instruction.

As disclosed by the evidence, the Elberta Fruit Company is a private corporation for the purpose of general farming and growing and selling fruit and vegetables. The terms of the charter do not extend to buying fruit and vegetables of outside parties, and the company had never purchased fruit and vegetables grown by other persons. The appellee has its farm at Bullard, Tex. Fred J. Sackett is the manager, and has been for eight years, of the farm for the company, and is the only person authorized to transact its business. In the season of 1915 the appellee had grown a large crop of tomatoes to be sold in the Northern markets. Appellant, a farmer near Bullard, raised a tomato crop during the season of 1915, and, it appears, delivered to Mr. Sackett at Bullard, on June 11, 1915, 2,350 pounds of tomatoes and also 907 pounds of tomatoes, and on June 15, 1915, 2,490 pounds of tomatoes. There is a clear difference, as disclosed by the evidence, between the testimony of appellant and that of Mr. Sackett as to whether appellant was to be paid for the tomatoes the fixed market price of the day of delivery of 2½ cents per pound for the 907 pounds, and 3 cents per pound for the remainder, or appellant was to receive such amount of money as was actually realized for the tomatoes when shipped to and sold in the Northern markets by Mr. Sackett. This disputed matter rests, though, it may be said, upon the determination of the ultimate fact of whether or not in handling the tomatoes of appellant Mr. Sackett was acting solely for the benefit and account of appellant as sales agent for him, or purchased the tomatoes at Bullard as agent and for and in behalf of the Elberta Fruit Company; for the evidence of appellant goes to show a sale and purchase of the tomatoes at Bullard for a fixed price by Mr. Sackett for and in behalf of the Elberta Fruit Company; and the evidence in behalf of appellee goes to show that, in undertaking to handle the tomatoes of appellant, Mr. Sackett was doing so solely as sales agent for the appellant, and without charge therefor, or as an accommodation to appellant. Thus, if it be true that the handling and selling of the tomatoes was undertaken by Mr. Sackett, as he contends, solely for the interest and benefit of appellant, then clearly the legal relation between appellant and Mr. Sackett is that of principal and agent, and Mr. Sackett individually, and not the Elberta Fruit Company, would be liable to appellant for such prices as was realized from the sale of the tomatoes in the shipment to the Northern markets. But if it be true that Mr. Sackett, as claimed by appellant, purchased the tomatoes at Bullard for and in behalf of the Elberta Fruit Company and agreed to pay a fixed price for them, then the appellant may recover of the Elberta Fruit Company such agreed price, unless it further appears that the...