Smith v. F. W. Heitman Co.

• Decision Date: 30 November 1906
• Citation: Smith v. F. W. Heitman Co., 98 S.W. 1074, 44 Tex.Civ.App. 358 (Tex. App. 1906)
• Parties: SMITH v. F. W. HEITMAN CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

98 S.W. 1074

SMITH v. F. W. HEITMAN CO.^*

Court of Civil Appeals of Texas.

November 30, 1906.

Rehearing Denied January 3, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by the F. W. Heitman Company against Fort Smith. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Fisher, Sears & Sherwood and R. W. Franklin, for appellant. Hunt & Myer, for appellee.

REESE, J.

The F. W. Heitman Company sued Fort Smith upon a promissory note for $1,500, and to recover, also, the amount alleged to be due upon open account, partly for goods sold and delivered by the Heitman Company to Fort Smith and partly for money alleged to have been paid by said company for account of storage of certain machinery belonging to him. The open account was verified by affidavit under the statute. Defendant, in his answer, after a general denial, alleged that under a contract with plaintiff he had returned to it certain articles of machinery, consisting of nine Morris pumps and two Moore pumps, and of the aggregate value of $1,515, for which he was entitled to credit under said agreement, after deducting from the same what the missing parts of said machinery would cost. It was alleged that the Heitman Company agreed to receive and accept said machinery and to credit defendant with the purchase price of the same on his indebtedness to plaintiff; that it was further agreed that, as some of the parts of said pumps were missing, plaintiff should supply the same and charge defendant with the price thereof; that the missing parts were worth $45, leaving $1,470, for which defendant is entitled to credit.

As to the open account, defendant under oath denies the items of cash paid for storage, as charged in the account, amounting to $120, and avers that he had tendered to plaintiff $53.75 on the note and $74.78 on the open account, which is all that was due at the date of the tender, after allowing him credit for the $1,470 on account of the pumps returned by him and deducting the overcharge for storage, which plaintiff refused to accept and defendant in his answer renews the tender. By supplemental petition plaintiff denied the alleged agreement that the pumps referred to in defendant's answer were to be returned to plaintiff, and that the same were so accepted and received by them to be credited upon defendant's indebtedness. It is alleged that the first intimation that plaintiff had that the machinery was to be shipped was the receipt of a notice from the railroad company that there was a car load of machinery at the station which had been shipped by defendant to plaintiff; that plaintiff at once endeavored to get into communication with defendant, and after making numerous inquiries learned that he was out of the city (of Houston); that defendant was at that time a heavy customer of plaintiff, and, desiring to protect him from demurrage charges, plaintiff finally received said car of machinery, and, not having room in his warehouse to store the same, stored it at the warehouse of Street & Graves, who refused to accept the same for storage unless plaintiff would agree to pay the storage charges. It is averred that plaintiff, in receiving and storing the machinery, acted purely for the accommodation of defendant, and that defendant never intimated to plaintiff that he considered the property to belong to plaintiff, but, on the contrary, repeatedly stated to plaintiff that he expected to use the property himself. Plaintiff claims the further sum of $25 for storage charges for the months from June to October, inclusive, paid by him since the filing of its original petition.

The execution of the notes and the indebtedness upon the open account, with the exception of the storage charges, were admitted by defendant; and the receipt of the machinery was admitted by plaintiff. The issue was as to whether there was any agreement that the pumps referred to in defendant's answer should be returned to plaintiff by defendant, and the price thereof, less the price of the missing parts, credited upon his indebtedness, and whether plaintiff received and accepted them in pursuance of this contract. If defendant's contention with regard to this agreement be true, he would not be liable for the storage charges. The issues were submitted to the jury, and a verdict returned for plaintiff for the full amount of its demand. From the judgment, defendant appeals.

Appellant requested the trial court to give the following charge, which was refused, and the refusal is here assigned as error: "You are charged that if you believe, from the evidence, that defendant and plaintiff agreed that defendant might return any machinery he might have bought of plaintiff, and which he did not use, and that same would be taken back and credited, as alleged in the answer, then if you further believe that defendant returned the machinery set out in his answer, and that it was part of machinery bought of plaintiff, then you are instructed that plaintiff would not have a right to reject same, because he had gone out of the machinery business." The agreement under which the pumps are alleged by appellant to have been returned is thus stated in appellant's answer: "And for further answer this defendant says that on or about the ____ day of December, 1902, he delivered to the plaintiff, in Houston, Texas, the following described machinery, which defendant had previously bought of the plaintiff, to wit: Nine 8" Morris vertical suction pumps, numbered as follows: 30,031, 30,013, 30,373, 30,405, 30,030, 30,404, 30,014, 30,378, 30,377. Also two 3×2×3 Moore oil pumps. And this defendant delivered said property to plaintiff, and it agreed to receive and accept said pumps, and to credit defendant with the purchase price of the same on his indebtedness to the plaintiff. Defendant shows that at the time of the making of said agreement he was largely indebted to plaintiff, and said pumps were taken with the express agreement and understanding that the purchase price thereof should be credited against this defendant's indebtedness to plaintiff."

It thus appears that appellant did not rely so far as shown by his pleadings, upon a general agreement that defendant might return any machinery he might have bought of plaintiff and which he did not use, and that the same should be taken back and credited, as stated in the requested charge, but upon a particular agreement that the pumps set out in the answer might be returned, and that under this particular agreement they were received and accepted by appellee. We have examined...