Teneha Oil Co. v. Blount, 6625
| Decision Date | 09 May 1963 |
| Docket Number | No. 6625,6625 |
| Citation | 368 S.W.2d 655 |
| Parties | TENEHA OIL COMPANY, Appellant, v. W. A. BLOUNT, Appellee. |
| Court | Texas Court of Appeals |
Joe Davis Foster, Center, for appellant.
Richard McDaniel, Center, for appellee.
The action was instituted by appellant in a district court to recover upon an open account for goods, wares and merchandise sold to appellee. In defense appellee pleaded in bar the two year statute of limitations, Art. 5526, Vernon's Ann.Civ.St. Thereupon appellant filed its first amended original petition again pleading said account, but alleging that said merchandise was consigned to appellee, and that appellee received such merchandise and promised and agreed to sell the same for appellant, and to account to it therefor and pay it the proceeds from the sale of such merchandise at the prices agreed to set opposite each item as shown on 'Exhibit A' attached to and made a part of the amended petition.
Appellee having filed his motion for summary judgment on the ground that said account was barred by the two year statute of limitation and a hearing thereon having been held, the court sustained the motion and decided that the account was barred by limitation and rendered judgment against appellant thereon. The petition also contained a count for a balance of $181.66 due on a check executed by appellee to appellant. After granting summary judgment on the account, the court dismissed the count for $181.66 for want of jurisdiction to hear it.
Appellant asserts that the court was in error in holding the account barred by the two year statute of limitation for the reason that 'Exhibit A' was a written contract. This exhibit consists of three forms, all of like import, one of which follows:
TENEHA OIL CO. consignment
------------- -----------
Distributor
Skelly Oil Company Products
Telephone 77
Teneha, Texas
Consigned
to: H.D. Carroll Sta. 8/25/1958
------------------------------ -------------
Address Joaquin Del. To Same
------------------------------ -----------------------------------------
Description Quantity Price Price w/Tax
(Here follows list
of tires) (2 of (price of (price of
each each each tire
kind) tire) w/tax) Total $391.54
/s/W.A. Blount 2/2/59
Received /s/Robert B. King Delivered /s/B.M.Bowlin
------------------------------------------ -----------------------------
/s/Buck Daw
It is claimed, since the word 'sold' was erased from the form used and the word 'consigned' written above it, and the word 'consignment' written to the right of appellant's name on the form, that this clearly shows the transaction was a consignment and, being in writing, takes it out of the application of Art. 5526 and places it under Art. 5527.
We hold that this written statement, whether called a sales slip, consignment slip, or by other name, is not a written contract within the meaning of Art. 5527. Appellant emphasizes the words 'consigned to' and 'consignment'. But standing alone they offer little help in solving the real, actual relationship existing between two or more persons. As said in In re Wells, 3 Cir., 140 F. 752:
In Falls Rubber Co. v. La Fon (Tex.Com.App.), 256 S.W. 577, involving the question whether the contract was one of sale or consignment, it was held that the use of the legal term 'agent' was not controlling but the contract as a whole must determine the relationship and, although invoices were sent under the contract stating the goods were 'sold to W. E. La Fon', this was of no significance in determining the question. See also 25 Tex.Jur. (2) 212.
When embodied in a full, written contract between merchantsThe terms 'consigned to' and 'consignment' have a definite legal meaning, Charles M. Stieff, Inc. v. City of San Antonio, 130 Tex. 594, 111 S.W.2d 1086. But even so, it is recognized that there are many different classes of and provisions in contracts relating to consigned merchandise, as an examination of the Stieff case above, as well as Falls Rubber Co. v. La Fon (Tex.Com.App.), 256 S.W. 577, and Milburn Manufacturing Co. v. Peak, 89 Tex. 209, 34 S.W. 102, will illustrate.
The test, we think, to be applied in determining whether 'Exhibit A' makes a contract in writing between appellee and appellant is found in Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249 at p. 250:
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In re Citation Corp.
...upon must itself contain a contract to do the thing for the nonperformance or which the action is brought." Teneha Oil Co. v. Blount, 368 S.W.2d 655, 657 (Tex.Civ.App.1963) (citing Shaw v. Bush, 61 S.W.2d 526, 528 (Tex. Civ.App.1933)). Plaintiff in this case urges that the contract is one o......
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