Tyler Ice Co. v. Coupland & Norman

• Citation: 99 S.W. 133
• Parties: TYLER ICE CO. v. COUPLAND & NORMAN.
• Decision Date: 03 December 1906
• Court: Court of Appeals of Texas

99 S.W. 133

TYLER ICE CO. v. COUPLAND & NORMAN.

Court of Civil Appeals of Texas.

December 3, 1906.

Rehearing Denied January 10, 1907.

Appeal from Smith County Court; S. A. Lindsey, Judge.

Action by Coupland & Norman against the Tyler Ice Company. Judgment for plaintiff, and defendant appeals. Reversed.

Duncan & Lasseter, for appellant. McCord & Bullock, for appellees.

REESE, J.

Coupland & Norman sued the Tyler Ice Company in the county court, alleging that "on the ______ day of January, 1904, they had made and entered into a verbal contract, whereby the defendant, the Tyler Ice Company, agreed and obligated itself to furnish to the plaintiffs, for the year 1904, ice at $3.00 per ton free on board of cars at Tyler, Tex." This is a full statement of the contract as alleged in the petition. It is further averred that on the faith of this contract plaintiffs had made contracts for the sale of ice; that defendants failed and refused to comply with their contract, and they had been compelled to buy ice to supply their needs elsewhere at $4 per ton, and had to pay a higher freight rate on the same than they would have had to pay on ice bought from defendant. It is further charged that defendant maliciously and willfully circulated reports that plaintiffs could not furnish ice, and would soon have to cease business, and that by reason thereof plaintiffs were forced to suspend business. Damages actual and exemplary are claimed in the sum of $600. Defendants answered by general demurrer and special exceptions, general denial, and specially alleged that John L. Phillips, with whom plaintiffs claimed to have made the contract upon which the suit was predicated, did not at the date of said alleged contract have any connection with defendant ice company, nor any power or authority to bind defendant in any way. Upon trial before a jury there was a verdict for plaintiffs for $203.50. Upon motion for new trial by defendant, plaintiffs entered a remittitur of $100, and, the motion being overruled, defendant appeals.

The first assignment of error assails the ruling of the court in not sustaining appellant's special exception to the petition, on the ground that the contract pleaded is void and unenforceable, in that it does not obligate the plaintiffs to purchase any particular amount of ice or any ice whatever, is one-sided, and lacking in mutuality. The assignment is well taken. The contract as pleaded is fully set out herein. No obligation is alleged on the part of appellee to buy, nor does the contract as alleged bind appellant to sell, any specified amount of ice. The contract alleged is void for want of mutuality, and not enforceable as a contract to deliver any amount of ice. Railway v. Mitchell. 38 Tex. 85; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540.

We would be inclined to hold that the contract as testified to by L. T. Norman would escape these objections, embracing as it did, in the language of the witness, "the next season's ice," and including both an offer to sell and an acceptance. The second assignment of error presenting this point is overruled.

Of the remaining assignments it will only be necessary to notice the fifth, which complains of the refusal of the court to give, at the request of appellant, a peremptory instruction to return a verdict for the defendant ice company....