Texas & Louisiana Lumber Co. v. Rose
| Decision Date | 05 June 1907 |
| Parties | TEXAS & LOUISIANA LUMBER CO. v. ROSE. |
| Court | Texas Court of Appeals |
Appeal from Liberty County Court; T. C. Crane, Judge.
Action by W. U. Rose against the Texas & Louisiana Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.
Marshall & Marshall and A. W. Marshall, for appellant. J. F. Dabney, for appellee.
This is a suit for the value of a certain car load of lumber sold by appellee to appellant, which it accepted, but refused to pay for, and for damages arising from a failure and refusal to accept and pay for another car load of lumber, which was instituted in the justice's court, where judgment was rendered for appellee for $49.20, from which judgment he appealed to the county court, where he recovered judgment for $157.84. From that judgment appellant has perfected this appeal.
It was testified by appellee that he sold two car loads of lumber to appellant; one for $98.42, which was accepted, but not paid for, by appellant, and the other for $94.40, which was neither accepted nor paid for by appellant. The lumber was shipped from Saratoga, Tex., to Dayton, Tex.; the contract prices being for the lumber on the cars at Saratoga. The lumber was shipped to Dayton, and, after appellant had refused to accept one car load, appellee swore that he had endeavored to sell the lumber in Dayton, but could not do so, and he then shipped it to Humble, and there sold it, realizing over and above expenses the sum of $35.50. If appellant agreed to pay appellee a certain price for the lumber when it reached Dayton, and refused to receive the same, appellee was authorized to sell the lumber again for its market value at Dayton, and credit the same on the account against appellant, and could recover the balance of the contract price, if any, from appellant. If there was no market at Dayton, and he could not make a fair sale of the property at that point, then he might have been justified in shipping to the nearest and most accessible point and selling the same there at its market value, or fair value, if there was no market value. Appellee having elected to resell the lumber, it devolved on him to show, under the circumstances surrounding this case, not only that there was no market value for the lumber at Dayton, and that he could not sell there at a fair value, but that Humble was the most accessible point for sale of the lumber, and that there he had sold it for its market value, or, if there was no market value, that he had received a fair and reasonable value for it. Appellee showed that the lumber could not be sold in Dayton, but did not attempt to show that he had used care in obtaining the lowest shipping rates to the most accessible point, and that there he used ordinary care in obtaining the best price he could for the lumber. He merely testified to shipping the lumber to Humble and selling it to a firm there; considerably over two-thirds of the price being taken off for freight. When appellee took possession of the...
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