Sealy Oil Mill & Mfg. Co. v. Barronian

• Decision Date: 20 January 1926
• Docket Number: (No. 8752.)
• Citation: Sealy Oil Mill & Mfg. Co. v. Barronian, 282 S.W. 315 (Tex. App. 1926)
• Parties: SEALY OIL MILL & MFG. CO. v. BARRONIAN.
• Court: Texas Court of Appeals

282 S.W. 315

SEALY OIL MILL & MFG. CO. v. BARRONIAN.

(No. 8752.)

Court of Civil Appeals of Texas. Galveston.

January 20, 1926.

Rehearing Denied February 25, 1926.

Appeal from District Court, Waller County; J. D. Harvey, Judge.

Action by G. G. Barronian against the Sealy Oil Mill & Manufacturing Company. From an order overruling defendant's plea of privilege, it appeals. Affirmed.

Krueger & Duncan, of Bellville, for appellant.

J. E. Edmondson, of Bellville, and Maurice Hirsch & Allen Hannay, of Houston, for appellee.

GRAVES, J.

This statement of the case, which the appellee admits to be substantially correct, is taken from appellant's brief:

"The appellee filed this suit in the district court of Waller county, Tex., against the appellant on the 3d day of April, A. D. 1924, seeking to recover damages in the sum of $1,528.50 for an alleged breach of a written contract bearing date November 7, A. D. 1923.

"The appellee alleged in his petition that on or about the 20th day of October, A. D. 1923, in Waller county, Tex., appellee contracted to sell to appellant, and appellant contracted to purchase of and from appellee, and did purchase of and from appellee, 50 tons of cotton seed at $39 per ton, f. o. b. appellee's seed house, near Pattison, in Waller county, Tex., and agreed to pay for same in Waller county, Tex.

"Appellee further alleged that, in accordance with said contract, the appellant did receive, f. o. b. appellee's seed house, 20 tons of cotton seed, and paid appellee for same at said agreed price of $39 per ton; that, after receiving and paying for said 20 tons of cotton seed, as agreed, defendant refused to further proceed in carrying out said contract of October 20, 1923, thereby violating said contract; that appellee subsequently sold said cotton seed on the market for the best price obtainable, and did realize and receive for said seed the sum of $29.65 per ton gross, but the appellee was forced to spend $4 per ton, or $120, in order to load said 30 tons of seed f. o. b. cars at Brookshire, Tex thereby making a total loss to appellee, because of the wrongful refusal of appellant to carry out said contract, in the sum of $450 for which he sues.

"The appellee further alleged that on or about the 7th day of November, A. D. 1923, in Waller county, Tex., appellee contracted to sell to appellant, and appellant contracted to purchase of and from appellee, and did purchase of and from appellee, all the cotton seed purchased by appellant for the cotton season of 1923, to wit, about three to four carloads at a price of $48 per ton, of 2,000 pounds each, f. o. b. cars at Brookshire Station, in Waller county, Tex.; that at the time of the purchase appellant paid down the sum of $500; that afterwards the contract was amended by appellant agreeing to pay the sum of $50 per ton instead of $48 per ton, as originally agreed upon; that appellee has been ready and willing to comply with his part of the contract and deliver the cotton seed sold to appellant, and on January 31, 1924, the appellee notified the appellant in writing that he, the said appellee, was ready, able and willing to deliver the said cotton seed sold to appellant in accordance with the terms of said contract, and offered to deliver same to said appellant, and at the same time and in the same letter appellee demanded of appellant the acceptance of 110 tons of cotton seed f. o. b. cars at Brookshire, Tex., and demanded payment of same as provided for in said contract as originally made and later amended, to wit, $50 per ton; that appellee, after waiting a reasonable time and not hearing from appellant, or receiving any instructions from appellant with reference to the disposition of said cotton seed, on or about the 13th day of February, 1924, sold said seed on the open market for the best price obtainable, and did realize and receive for said seed the sum of $29.65 per ton, and same being $20.35 less per ton than appellant had contracted to pay for same, making a total loss to appellee because of the refusal of appellant to carry out his said contract of date November 7, 1923, in the sum of $1,628.00, less $500 heretofore received by appellee, as above mentioned.

"The appellee prayed for judgment against appellant in the sum of $1,528.50, and costs of suit.

"On the 4th day of October, A. D. 1924, the appellant filed his plea of personal privilege, praying that the cause be transferred to the district court of Austin county, Tex. Said plea was in accordance with the statutes.

"On the 29th day of October, A. D. 1924, the appellee filed a controverting affidavit. The appellant on said day and date...