Southern Pac. Co. v. Builders Hardware, Inc.

• Decision Date: 15 October 1964
• Docket Number: No. 14380,14380
• Citation: 382 S.W.2d 149
• Parties: SOUTHERN PACIFIC COMPANY, Appellant, v. BUILDERS HARDWARE, INC., Appellee.
• Court: Texas Court of Appeals

Page 149

382 S.W.2d 149

SOUTHERN PACIFIC COMPANY, Appellant, v. BUILDERS HARDWARE, INC., Appellee.

No. 14380.

Court of Civil Appeals of Texas, Houston.

Oct. 15, 1964.

Rehearing Denied Nov. 5, 1964.

Baker, Botts, Shepherd & Coates, John A. MacDonald, Jr., Houston, for appellant.

Newton M. Crain, Jr., Houston, Blades, Crain, Slator & Winters, Houston, of counsel, for appellee.

WERLEIN, Justice.

This suit was brought by appellee, Builders Hardware, Inc., to recover the value of a portion of a shipment of steel bars that it never received. The case was tried to the court without a jury and the court rendered judgment against appellant, Southern Pacific Company, in the sum of $3,834.09. The judgment of the court shows that all of the defendants in the suit were disposed of and that judgment was rendered solely against appellant. Appellee took a nonsuit against The Lynch Company, Inc., and Pan American Trade Development Corp., hereinafter called Pan American, filed a motion for summary judgment which was granted. The judgment provides that appellant take nothing against 'Orion' Schiffahrts-Ges Reith & Co., hereinafter called Orion, and Freemar Line, and shows that Houston Belt & Terminal Railway Company, hereinafter referred to as Belt, was dismissed from the suit on its motion. For an understanding of the case and appellant's points of error, it seems advisable to set out briefly some of the rather confusing facts giving rise to the suit.

A total of 532 lifts of steel reinforcing bars were loaded aboard the SS Beteigeuze in Europe in September, 1959 for shipment to Pan American, as consignee, % W. R. Zanes & Co., Houston, Texas, hereinafter called Zones, under Ship Bills of Lading Nos. 28 (for 120 lifts) and 40 (for 422 lifts), which bills acknowledged receipt of the entire shipment in good order. While said shipment was enroute to Houston, Pan American sold the entire shipment to Lynch Company, which in turn transferred the same to appellee, and appellee paid the entire purchase price. Before instructions for delivery were given to the ship agents, Hinkins-Hall SS Company, by Zanes, appellee sold to San Jacinto Sales Co., its claimed joint enterpriser, a portion of the lifts. The SS Beteigeuze was chartered by Orion, its owner, to the defendant, Freemar Line.

At the request of appellant, the court made its findings of fact and conclusions of law. Among other things, the court found that Hinkins-Hall was directed by Freemar Line to unload the 532 lifts of steel bars into railroad cars; that 45 of the lifts sold by appellee to San Jacinto Sales Co. were in turn to be delivered to the Dorsid Trading Co.; that 422 lifts of the steel bars loaded on the SS Beteigeuze under Ship Bill of Lading No. 40 were unloaded at Houston on November 9 and 10, 1959, into waiting railroad cars and were checked as they were unloaded by E. L. King on behalf of Hinkins-Hall; that the bill of lading issued by Belt on November 19, 1959 acknowledged receipt of 227 lifts out of the total shipment of 532 lifts, in good order, to be delivered to San Jacinto Sales Co., which actually received 228 lifts; that one bill of lading dated November 19, 1959 was issued by appellant, acknowledging receipt of 245 lifts, to be delivered to appellee, and the same were delivered; that appellant on November 19, 1959, issued a second bill of lading acknowledging receipt of 60 lifts to be delivered to appellee, which company was served only by appellant; that on November 10, 1959, said 60 lifts, out of the 422 lifts, under Ship Bill of Lading No. 40, had been discharged from said ship in good order into Railroad Car No. MP 22638; that the entire 532 lifts were duly cleared through the United States Customs and customs duty thereon was paid; that the Car MP 22638 containing 60 lifts was to be delivered by appellant to appellee, for the unloading of 15 of such lifts, and it was thereafter the intention of appellee to have a new bill of lading issued directing the remaining 45 lifts to be delivered to Dorsid Trading Co.; that neither Railroad Car No. 22638 nor the 60 lifts of steel bars placed on it for delivery to appellee was ever delivered to the appellee or its order by appellant, and Dorsid Trading Company never received any part of the 45 lifts it was to receive, and that appellee absorbed the entire loss since it did not receive sufficient lifts to make delivery to Dorsid Trading Company; that thereafter appellant discovered Car No. MP 5635 on the Houston docks containing 28 lifts of steel which did not bear the same marks as any of the 532 lifts, but appellee agreed to accept such 28 lifts and credit them against its total loss, and said Car MP 5635 was delivered to appellee without appellant issuing a bill of lading; that appellee also gave credit for one extra lift of bars delivered to San Jacinto Sales Company, thereby reducing its loss to a total of 31 lifts; that no part of said 31 lifts has ever been delivered to appellee or its order, and the fair market value of the same was $3,834.09 which has never been paid in whole or part. No additional findings of fact were requested by appellant.

Appellant in its first six Points of Error asserts that the court erred in entering judgment predicated on the enforcement of a cancelled contract; that the court erred in refusing to grant appellant a directed verdict; that there was no evidence and also insufficient evidence to show that appellant received 60 lifts belonging to appellee which it failed to deliver; and that the court's Conclusion of Law No. 2 has no support in the evidence and is against the great weight of the evidence. The Court's Conclusion No. 2 reads as follows:

'That the Defendant, Southern Pacific Company, received 60 lifts of the steel reinforcing bars loaded aboard Car No. MP 22638 in good order and condition and issued its Bill of Lading on November 19, 1959, acknowledging receipt of same in good order and condition. That the Defendant, Southern Pacific Company, never delivered said car No. MP 22638 or any of the 60 lifts of steel reinforcing bars to Builders Hardware, Inc. or to its order, the said Builders Hardware, Inc. being the consignee named on the bill of lading covering the said car and its contents and its shipment by the Southern Pacific Company and the Southern Pacific Company has neither pleaded nor proven any excuse for its failure to so deliver said 60 lift of steel reinforcing bars. It is therefore liable to the Plaintiff, Builders Hardware, Inc., for the fair market value of the 60 lifts of steel reinforcing bars contained in said car No. MP 22638 which it failed to deliver, less the fair market value of the 29 lifts for which plaintiff gave credit against its total loss, or the total sum of $3,834.09.'

Elbert L. King, who was an employee of Hinkins-Hall in November, 1959 but not since 1959, testified in substance that he was deck clerk and checker at No. 4 hold on board the SS Beteigeuze on November 9, and 10, 1959; that on such days the cargo of 422 lifts under Ship Bill of Lading No. 40 was discharged from such hold into waiting railroad cars; that he pepared and kept tally sheets as the steel came out of the hold in order to keep track of the number of lifts discharged therefrom and he would mark down the number of lifts placed in a certain car after they got to the car; and that he was on the deck most of the time but had occasion to go into the cars.

After looking at the tally sheet which he had made and signed (Freemar's Exhibit No. 1) and refreshing his memory thereby, he testified that 60 lifts of the steel from No. 4 hold were placed in Car MP 22638 as shown on the tally sheet. Freemar's Exhibit No. 2, also introduced in evidence, shows U. S. Customs Service Release as of November 10, 1959 of the 422 lifts under Ship's Bill of Lading No. 40.

It is our view that independently of the bills of lading issued by appellant, the unequivocal testimony of Mr. King was evidence of probative force that 60 lifts of the steel bars under Ship Bill of Lading No. 40 belonging to appellee were placed in Car MP 22638 and delivered into appellant's possession on November 9 or 10, 1959. Appellant wholly failed to show what happened to such car between November 10 and November 17, 1959 when it was located on the appellant's tracks at Nationwide Supplies in Houston. It was there unloaded on November 19 or 20 and found to contain only 41 lifts which were a part of 188 lifts that Nationwide had purchased and which were delivered to that company under Ship Bills of Lading Nos. 17 and 27. What became of the 60 lifts originally placed in such car was never explained by appellant and has remained a mystery.

On November 19, 1959 after Car No. MP 22638 had been delivered to Nationwide Supplies and was there unloaded or in the process of being unloaded, appellant issued three bills of lading, one for 245 lifts of steel bars ex SS Beteigeuze consigned to appellee which were delivered in due course, as found by the trial court, one for 60 lifts of steel bars from such ship consigned to appellee which were never delivered, and one for 188 lifts consigned to Nationwide Supplies, and delivered in four cars, one of which...