Steel by-Products Co. v. Vernon Cotton Oil Co.

• Decision Date: 19 December 1923
• Docket Number: (No. 2226.)
• Citation: 257 S.W. 613
• Parties: STEEL BY-PRODUCTS CO. v. VERNON COTTON OIL CO.
• Court: Texas Court of Appeals

257 S.W. 613

STEEL BY-PRODUCTS CO. v. VERNON COTTON OIL CO.

(No. 2226.)

Court of Civil Appeals of Texas. Amarillo.

December 19, 1923.

Rehearing Denied January 16, 1924.

Appeal from District Court, Wilbarger County; J. V. Leak, Judge.

Action by the Steel By-Products Company against the Vernon Cotton Oil Company. From an order of dismissal, plaintiff appeals. Reversed and remanded for new trial.

J. Lee Zumwalt, of Dallas, for appellant.

Berry, Stokes & Killough, of Vernon, for appellee.

RANDOLPH, J.

Appellant, as plaintiff, filed this suit in the district court of Wilbarger county against appellee, as defendant, to recover damages for alleged breach of contract for the purchase by plaintiff from defendant of certain bales of grabbots and linters. Defendant specially excepted to the petition upon the ground that it pleaded a contract not in writing which was barred by the statute of limitations of two years, and the trial court sustained such exception and other special exceptions, and, the plaintiff declining to amend, the cause was dismissed. From this order of dismissal appeal has been taken to this court.

That the questions of law presented in issue here may be understood, quotations will be made from the petition.

Appellant's assignments Nos. 3, 4, 5, 7, 11, 12, 13, and 17 raise the question, in one form or another, that the trial court erred in holding that the two-year statute of limitation applied to the cause of action as pleaded by it in its petition, because it did not set out a cause of action founded on a written contract. The following taken from the petition contains substantially the allegations in which and by which the contract is pleaded:

"(2) That the plaintiff is engaged in buying and selling cotton, cotton linters, grabbots, and other like products, and that during the month of May, 1919, the plaintiff and defendant entered into a contract by which the defendant sold to the plaintiff 251 bales of linters and grabbots, the number of grabbots being 9 bales and the number of bales of linters being 242. That a memorandum of said contract was reduced to writing, and said contract evidenced by confirmation letters and telegrams signed by the defendant. That said products were to be of the grades of samples thereof which the defendant had submitted to the plaintiff for inspection, and said products were in possession of the defendant in the city of Vernon, and were sold to the plaintiff for the price of 3½ cents per pound, f. o. b. railway cars at Vernon, for the linters, except 75 bales at 3 cents per pound, and 7 cents per pound for grabbots.

"(3) That plaintiff in purchasing said products notified the defendant that it had sold the same to a customer, and that, in the event the products were not equal to the grade represented, in such event the plaintiff would be required to make good or suffer loss in a reduced price to be paid by said customer. That the fact that plaintiff notified the defendant that it had sold the same the custom of business which was well known to the defendant required such loss to be borne by the plaintiff. That the defendant was notified of and from the custom of business knew that in such cases any loss in weight of said products would have to be made good by the plaintiff or deduction made of its sale price, and the defendant entered into such contract with the plaintiff with full notice of the special damages that might be incurred by the plaintiff, and also with full knowledge of the business custom above mentioned, and said custom being a part of said contract.

"(4) That on or about the 5th day of June, 1919, the defendant placed on board the railway cars at Vernon, Tex., said products, to be shipped to the plaintiff at Chicago, Ill., and at the same time drew a draft upon the plaintiff for the sum of $4,740.48, attaching thereto the bills of lading for said products in said cars. That plaintiff in good faith paid said draft, but after the delivery of said products it discovered that the defendant had claimed them to be of greater weight than was actually shipped, and on that account, and having paid the amount demanded by defendant in said draft, the plaintiff paid to the defendant $175.53 more than the defendant was entitled to receive due its claim for an excessive amount in claiming and representing weight of said products to be greater than they were, and the plaintiff is entitled to recover of the defendant the said sum of $175.53, and legal interest thereon from the 12th day of June, 1919, the date of payment of said draft.

"(5) That, due to the fact that the defendant did not have said products properly protected from the weather, all of said products were more or less damaged, and it was agreed that the defendant would, before shipping same, place said products in proper condition by removing all the wet and damaged portions, and only ship bales of a grade of the samples theretofore submitted to the plaintiff, and which would be fit for use by the plaintiff's customers; that the wet caked and damaged portions of said bales were unfit for use and was not of any value, but the defendant wholly failed to carry out said contract and to recondition said cotton and remove the damaged portions as it had agreed to do, but shipped all the damaged portions, and...