Stanley v. Sumrell

• Decision Date: 17 January 1914
• Parties: STANLEY v. SUMRELL.
• Court: Texas Court of Appeals

163 S.W. 697

STANLEY v. SUMRELL.

Court of Civil Appeals of Texas. Amarillo.

January 17, 1914.

Rehearing Denied February 21, 1914.

Appeal from Wheeler County Court; L. D. Miller, Special Judge.

Action by C. F. Sumrell against J. E. Stanley. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. B. Reynolds, of Wheeler, for appellant. N. P. Willis, of Canadian, for appellee.

HALL, J.

November 13, 1911, appellant Stanley leased to appellee a certain farm in Wheeler county, and, among other stipulations in the written contract of lease, is the following: "Party of the first part [appellant] agrees to buy of party of the second part [appellee] all his kaffir corn at market value at the farm, excepting the amount second party wishes to feed his teams." The lease contract, in addition to the one quoted, contains the usual terms, and it is not necessary to state them further. On November 30, 1912, appellee sued the appellant in the county court of Wheeler county, alleging the execution of the lease contract, its expiration on December 31, 1912; that it bound him to plant and cultivate 140 acres of the land leased to kaffir corn; that the defendant specially agreed that he would purchase all of such kaffir corn, except the amount plaintiff wished to feed his teams at market value at the farm; that plaintiff's portion of the kaffir corn so grown upon said land became and was 96 2/3 acres, upon which there was matured an average of three tons of kaffir corn to the acre, and which became marketable on or about the 15th of November, 1912; that on said date plaintiff offered the said corn to the defendant at market price thereof upon said farm, which he alleges was $3 per ton, or the sum of $9 per acre, aggregating $870; that thereupon defendant refused to purchase the same, saying that he needed no kaffir corn, and that he was willing to pay only $384 therefor, and instructed plaintiff as to the disposition of the corn, to the effect that if plaintiff could find any person within 10 days who would pay more than $384 for said corn, plaintiff should sell said kaffir corn within 10 days to said person. Plaintiff further says that at said time it was known to defendant that plaintiff had worked an entire farm year upon the crops, and that plaintiff's share of the kaffir corn represented the bulk of plaintiff's compensation for a year's work, and that plaintiff had contracted debts in and around the town of Wheeler near said farm, expecting to pay said debts from the proceeds of the sale of said kaffir corn, and that said debts were due, and that it was necessary for plaintiff to make immediate disposition of said corn to pay said debts, on account of which plaintiff was obliged to sell, and did sell, the same for the sum of $425, which was the best price obtainable at said time, though less than the market value of said corn, because the market value thereof at the time of said sale was $870, on account of which plaintiff lost the difference, amounting to $445, which he alleges to be the amount of his loss and damage, and that said sum constitutes special damage, of which defendant had notice, in that plaintiff was obliged to make immediate sale of said kaffir corn, and at a sacrifice, to pay his debts, as defendant further instructed him to do, and, further, because, as was shown to defendant, said kaffir corn must be speedily sold for the reason it would soon be destroyed and eaten up by wild ducks, in the condition and place in which it was at said time. Plaintiff further proceeds to allege facts under which he claims a lien upon the appellant's share of the kaffir for the payment of his damages. By trial amendment plaintiff alleges that defendant gave him instructions to sell the kaffir corn within 10 days for more than $384, and that plaintiff accepted the defendant's instructions in such respect, and undertook to carry them out, to sell said corn for defendant's account as defendant's agent, of all of which defendant had due notice.

Appellant's answer consisted of a general exception, special exceptions to that part of plaintiff's petition in which it is alleged that defendant instructed plaintiff to sell the corn to any person whom he could find who would pay more than $384, because the allegation is vague, indefinite, and uncertain and does not undertake to give what were the supposed instructions, but simply states the construction placed upon the instructions by plaintiff, and because the allegation leaves it uncertain whether the instructions were intended to empower the plaintiff to make such sale as the agent of defendant, or merely waived his right to purchase at the price offered, and consented that plaintiff might do better if he could. Exception was further urged to that part of the petition seeking special damages because it attempts to hold the defendant liable for loss occasioned by his sacrifice of the corn, without showing an excuse for such supposed sacrifice, except the stress of financial circumstances of the plaintiff, which would constitute no justification for sacrificing the property, and afford no grounds for special damages, and because it was not alleged that the defendant was notified by plaintiff that he was holding the corn as the agent of the defendant and was selling it for his account. There was a further special exception upon the ground that the contract shows upon its face to be without consideration, and that it lacked mutuality of obligation, in that defendant promised to buy such corn as plaintiff did not wish to feed to his teams, leaving it altogether with plaintiff as to how much defendant was to take, if any at all, of the corn, and was therefore not enforceable, and was void. All of the defendant's exceptions were overruled by the court. The court charged the jury that the measure of plaintiff's damages would be the difference between the contract price of the kaffir corn and the price at which plaintiff subsequently resold the same, provided they believed that plaintiff exercised reasonable care and diligence in reselling it, and further charged that before they could find for plaintiff they must find, by a preponderance of the evidence, that the plaintiff elected to resell the kaffir corn, and that defendant had due notice thereof, and that plaintiff exercised reasonable diligence to resell the same within a reasonable time, and at the best price he could reasonably obtain. There was a verdict and judgment for the plaintiff in the sum of $445.

The first assignment is that the court erred in overruling the defendant's general exception to the plaintiff's petition. It is alleged, as shown above, that plaintiff sold the corn because he was obliged to do so to meet his financial obligations, and because the wild ducks were destroying it. Whether he sold it as the agent of the defendant at the defendant's request or as the seller, whose vendee had refused to complete the sale, the duty rested upon him, in either event, to make the sale fairly, and for the best price reasonably obtainable. If he sacrificed the property, as alleged, in order to meet obligations of his own for the existence of which the defendant was in no way responsible, he could not charge appellant with the difference between the contract price and the price obtained by him under this sale at a sacrifice. We think if the value of the kaffir corn deteriorated by reason of the depredations of the wild ducks, or from any other cause for which appellee was not responsible, between the time the appellant refused to accept the corn and the date of the sale, appellant could have been made to bear such loss, and this fact was no excuse for the sale at a sacrifice. It will...