Texas Standard Cotton-Oil Co. v. National Cotton-Oil Co.

• Decision Date: 18 March 1897
• Citation: 40 S.W. 159
• Parties: TEXAS STANDARD COTTON-OIL CO. v. NATIONAL COTTON-OIL CO.
• Court: Texas Court of Appeals

40 S.W. 159

TEXAS STANDARD COTTON-OIL CO. v. NATIONAL COTTON-OIL CO.

Court of Civil Appeals of Texas.

March 18, 1897.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by the Texas Standard Cotton-Oil Company against the National Cotton-Oil Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Appellant sued appellee to recover the value of 19,740 sacks, as the property of plaintiff, converted by defendant. The petition alleged that a large lot of cotton seed, contained in the sacks, was sold by plaintiff to defendant, but that the sacks were not sold with the seed, but were to be returned to plaintiff, which was not done. The defendant denied generally, and pleaded specially, in substance, that the sacks went with the seed in the sale, as an incident thereto. The answer contained the following matter: "That the balance of said sacks came into plaintiff's possession in the course of trade; that it was the usage and the custom for the various cotton seed oil mills to distribute these sacks throughout the state and elsewhere for the use of those who sold and shipped to them cotton seed, and that for a number of years said sacks had been interchanged between defendant's and other mills, being identified, as a general rule, by a mark or brand peculiar to the firm, mill, or company to whom the sacks belonged; that plaintiff, while receiving sacks in accordance with such custom, and which sacks belonged to others, failed to observe that part of the custom requiring the return of such sacks to the true owners, and in that manner obtained possession of sacks belonging to this defendant to an amount far exceeding the number of those claimed by plaintiff in this suit, and which it never returned to defendant, though thereunto requested." The evidence showed that the sale of the seed was made by an instrument in writing which described the seed as "all the good, sound cotton seed that he [the president of plaintiff] now has on hand in store at his mills, * * * and also in the warehouse," etc., without mentioning the sacks containing them. It further shows that, in the handling of seed purchased by oil mills in operation, the uniform custom is to return to the owner whose mark is upon them the sacks in which the seed is shipped. When the sale in question was made, appellant was going out of business, its mill having been burned, and was selling the stock of seed which it had collected. The seed was sold by weight, and the weight of the evidence is that the understanding was that the sacks were not to pass to the purchaser, but were to be returned, and that their estimated weight was deducted from the gross weight of the seed in computing the amount due for the latter. There is, however, some evidence (unobjected to) tending to show that the sacks were to go in with the seed. The evidence is sufficient to sustain the verdict in favor of the defendant, on the ground that sacks of defendant had been converted by plaintiff equal in number and in value to those of plaintiff converted by defendant. Or the jury could well have refused to find a verdict for the plaintiff, on the ground that the evidence on this point was so uncertain that one could not be properly reached. The evidence also showed that many of the sacks delivered by plaintiff to defendant belonged to the latter, and the jury may have been unable, in this state of the evidence, to say what amount plaintiff was so entitled to, even if some of its sacks had been converted by defendant. The custom in the cotton-seed trade was for the owner of sacks to put his mark on them, and they passed from one dealer or mill to another, until they were returned to the owner by the last mill receiving them. Evidence was introduced to show that a large portion of the sacks delivered by the plaintiff to defendant belonged to other mills. This evidence was afterwards excluded by the charge. Evidence was also admitted to show...