Sonka v. Chatham

• Decision Date: 23 February 1893
• Citation: 21 S.W. 948
• Parties: SONKA v. CHATHAM et al.
• Court: Texas Court of Appeals

21 S.W. 948

SONKA v. CHATHAM et al.

Court of Civil Appeals of Texas.

February 23, 1893.

Appeal from district court, Brazos county; John N. Henderson, Judge.

Action by R. K. Chatham & Co. against Joseph Sonka to recover the price of machinery sold to defendant. There was judgment for plaintiffs, and defendant appeals. Reversed.

Ireland, Burges & Dibrel, for appellant. Ford & Doremus, for appellees.

WILLIAMS, J.

On the 24th day of February, 1890, appellant, who resided at Seguin, entered into a written contract with appellees, whose place of business was Bryan, by which he agreed to buy from them certain machinery, to be delivered on or about the 1st day of April, 1890, free on board cars at Seguin. The price agreed on was $3,300, which appellant agreed to pay in two installments, on May 15 and December 1, 1890. It was stipulated that the title to the property should remain in appellees until the purchase money was paid, and that, in default of payment, appellees should have the right to take the property, and sell it for payment of the purchase money, expenses, etc. Appellant discovered that he had made a mistake as to the character of machine needed by him, and on February 26, 1890, telegraphed appellees: "Hold order until I write. A change is desired." On March 5, 1890, he wrote to appellees, indicating the desired change; and the latter replied on March 7th, stating that the machinery had been ordered for appellant, but that the proposed changes would not affect them in any great degree, and requesting appellant to meet their agent, A. M. Rhodes, at San Antonio, on the next Monday night, when they were satisfied satisfactory arrangements could be made. Appellant did not go to San Antonio, but on March 11th Rhodes met him in Seguin, and an interview took place, about which there is a conflict of evidence; appellant claiming that the original contract was abandoned, by agreement, and a new one substituted, and Rhodes testifying that no new agreement was reached, and that the order stood as first made. March 14th appellees wrote appellant, suggesting that part of the machinery specified in the order, which appellees would have to purchase from other manufacturers, be changed, and articles of the same character, manufactured by them, be substituted, adding: "Your complete outfit, with this exception, has been ordered long since, and will be shipped promptly." March 15, 1890, appellant wired appellees: "Do not order any machinery for me now. I canceled first order, with consent of Rhodes." Appellees replied by letter of date March 17, 1890, stating that they had received no second order, and had not allowed appellant to cancel the first, and that they had long since ordered the goods, and would have them shipped promptly, etc. Appellees caused the machinery to be shipped to appellant at Seguin, free on board the cars; most of it arriving by the 10th of April, 1890. The appellant refused to accept the machinery, and appellees, through their agent at Seguin, sold it, according to the terms of the original order, treating the property as that of appellant. The machinery was bought in by appellees for the sum of $1,000, which was credited on the original order. This is an action by appellees, against appellant, to recover a judgment for the value of the machinery, less $1,000, the amount for which it sold at public auction, after deducting attorneys' fees and costs of sale. The appellant answered by admitting the original order to have been given, but set up that said order had been canceled, and an amended order given, and that the original order was repudiated on the 15th day of March, 1890, long before said machinery had been shipped him, and before some of it had been manufactured by the appellees, or by their order, and that, if appellees had any cause of...