Tompkins Machinery & Implement Co. v. Peter

• Decision Date: 17 May 1892
• Citation: 19 S.W. 860
• Parties: TOMPKINS MACHINERY & IMPLEMENT CO. v. PETER <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 860

TOMPKINS MACHINERY & IMPLEMENT CO. v. PETER et al.

Supreme Court of Texas.

May 17, 1892.

Commissioners' decision. Section A. Appeal from district court, Denton county; D. E. BARRETT, Judge.

Action by the Tompkins Machinery & Implement Company against Peter & Sherrill. Judgment for defendants. Plaintiff appeals. Reversed.

Edward Gray and W. M. Edwards, for appellant. F. E. Piner and Walton, Hill & Walton, for appellees.

COLLARD, J.

Suit by the Tompkins Machinery & Implement Company, a private corporation, against Peter & Sherrill, partners in a mercantile and farm machinery business at Roanoke, Tex., for the alleged value of five pulverizers shipped by plaintiff from Dallas to them, and freight on five pulverizers. Suit predicated on a written contract, as follows: "Roanoke Po., Texas, July 31, 1885. To Tompkins Machinery & Implement Co., Dallas, Texas: You will please order for us, to be delivered on cars at Dallas as per our order ten (10) #2 Chicago Screw Pulverizers and Seeders, for which we agree to pay eleven hundred & seventy ($1,170) dollars, as hereinafter expressed, and to pay ($100) one hundred dollars cash, advanced charges to cover freight from factory to Dallas. Payments for $1,170.00 to be made as follows: Note $390 to be paid Nov. 1st, 1885, with 10% interest; note $390 to be paid Feby. 1st, 1886, with 10% interest; note $390 to be paid Oct. 1st, 1886, with 10% interest. [Signed] PETER & SHERRILL." It is alleged in the petition that the expression in the contract "as per our order" meant that the defendants could order the pulverizers shipped part at a time or all at a time. It is alleged that plaintiff had already shipped to defendants one of the pulverizers, and on August 5th delivered to defendants the other four in pursuance of the contract, by placing them aboard the cars at Dallas consigned and addressed to defendants at Roanoke, Tex.; that by mutual consent the contract was canceled as to the other five pulverizers, and they were not shipped. The amount claimed in the petition is $634.80. Defendants, besides demurrer, general denial, and plea in bar by limitation of two years, answered: "(4) That on the 24th of November, 1885, defendants made a complete and full settlement with plaintiff of all accounts and demands of every nature then standing, by and between the said plaintiff and defendants, and that all matters then outstanding between plaintiff and defendants, by account or otherwise, were then and there fully adjusted and settled, all of which will fully appear by reference to a receipt executed and delivered to defendants by W. Pickens, who then and there, in making said settlement, and executing and delivering said receipt, was and so acted as the duly-constituted agent of plaintiff. * * * Defendants aver that any and all matters existing between plaintiff and defendants, in reference to said screw pulverizers and seeders, were in said settlement mutually adjusted and settled, and defendants were then and there fully acquitted and discharged of any and all obligations, liabilities, or demands in reference to the same." The Pickens receipt is as follows: "Roanoke, Texas, November 24, 1885. Received of E. B. Peter, on account of settlement of account of Peter & Sherrill with Tompkins Machinery & Improvement Company, one note for $140, one do. for $20, one do. for $200, one do. for $200, cash $46.17, for account Tompkins Machinery & Improvement Co. W. PICKENS." Plaintiff replied to defendants' answer, stating that it had a large running account with defendants, and that the receipt given was on account of other matters, and was not intended to cover the charge for the pulverizers; and that Pickens had no authority to bind plaintiff in the settlement set up by defendants; and, further, that plaintiff notified defendants that Pickens had no such authority immediately after the alleged settlement, and when plaintiff first learned of it. Verdict and judgment for defendants. Plaintiff appealed. At the time the order for the pulverizers was given one of them was already in possession of defendants. Plaintiff shipped four others, and by agreement the other five were never shipped. One Nichols was agent of plaintiff, and as such procured the order for the 10 pulverizers while at Roanoke.

Sherrill, one of the defendants, testified that he signed the order; that in about half an hour after it was signed, when Nichols had walked across the railroad to the livery stable and back, he (witness) told Nichols not to ship the pulverizers until instructed by him to do so, and Nichols assented; and the next day witness wrote to Nichols at Ft. Worth, where he said he would be, telling him not to ship the machines. One Pickens was sent to Roanoke to settle or collect the account due by defendants. It was a general account, containing many items, including the 10 pulverizers. Sherrill, (one of the defendants,) witness for defendants, testified: "Pickens was plaintiff's agent, and came to Roanoke to settle plaintiff's account with defendants in response to a written wish on the part of defendants. Defendants requested Pickens to strike out the item of pulverizers. This he did. * * *" Peter, then sole proprietor, paid Pickens in cash and notes the balance due plaintiff, deducting $49.80 freight on the pulverizers, and took the receipt from Pickens set out above. Sherrill says he then took Pickens to the railroad agent where the four machines were, (never having been received by defendants,) and Pickens...