Von Harten & Clark v. Nevels

• Decision Date: 09 November 1921
• Docket Number: (No. 1849.)
• Citation: 234 S.W. 676
• Court: Texas Court of Appeals
• Parties: VON HARTEN & CLARK, Inc., v. NEVELS et al.

234 S.W. 676

VON HARTEN & CLARK, Inc., v. NEVELS et al.

(No. 1849.)

Court of Civil Appeals of Texas. Amarillo.

November 9, 1921.

Rehearing Denied November 23, 1921.

Appeal from District Court, Lynn County; W. R. Spencer, Judge.

Suit by Von Harten & Clark, Inc., against W. D. Nevels and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Roscoe Wilson, of Lubbock, for appellant.

Percy Spencer, of Lubbock, for appellees.

HUFF, C. J.

Appellant, Von Harten & Clark, Inc., as plaintiff, brought suit against W. D. Nevels, G. E. Lockhart, and W. B. Slaton for damage on alleged breach of contract of sale for one hundred bales of cotton. It is alleged on the 25th day of September, 1919, the appellees, through W. B. Slaton, sold to G. E. Maedgen, who assigned the contract to appellant. The contract was negotiated over the telephone and later confirmed by letter. The confirmation letters state the contract as follows:

"This will serve to confirm purchase from you by telephone one hundred bales of cotton at $.31, basis middling, f. o. b. Tahoka, to be delivered any day not later than the 20th day of October."

The appellee Lockhart confirmed the same by letter:

"Some days ago Mr. W. D. Nevels and myself sold to you through Mr. W. B. Slaton one hundred bales of cotton, to be delivered on cars Tahoka, Texas, on or before October 20th, at thirty-one cents, middling basis, which contract for myself and Mr. Nevels I beg to confirm."

It is alleged that appellees failed to deliver the cotton on or before the 20th day of October; that on October 21st, appellants through its agent, called upon appellees and demanded delivery which appellees refused. By reason thereof appellant was damaged $3,662.45, the difference between the contract price and market price at the time and place of delivery.

In addition to a general denial and other special pleas, the appellee pleaded the contract was entered into in contemplation of—

"the invariable custom and rules among persons dealing in spot cotton sold upon contracts for future delivery for the buyer to have some one at the point of delivery upon the exact day and date of delivery to grade and accept the same and give shipping instructions, etc.; that in the contract sued upon there was no agreed price per pound understood between the parties, but the defendants merely undertook to deliver to the said C. E. Maedgen 100 bales of merchantable cotton; that the cotton raised in Lynn and surrounding counties during the fall of 1919 was of several grades, and of this fact the said C. E. Maedgen and the plaintiff were fully advised; that it was in the contemplation of the said C. E. Maedgen and these defendants, and it is and was an invariable custom among cotton buyers and sellers, that the said 100 bales of cotton were to be accepted whether the same were in whole or in part middling, good middling, low middling, strict middling, or otherwise; that the price of cotton, while extremely fluctuating from day to day, is always well defined at any particular time as between the respective grades thereof, and in accordance with the universal custom among cotton buyers and sellers and brokers it was the duty of said C. E. Maedgen and of the plaintiff, if it had any lawful connection with the said purchase and sale, to be at Tahoka, Tex., or have some one there on the 20th day of October, 1919, and not later, to grade said cotton and accept the same, and to come to some understanding with these defendants as to the price to be paid and to give these defendants some instruction as to how, when, and where to ship the same and upon whom and through what bank to draw for the purchase price."

It is alleged also that appellant was not present in person nor by representative to receive the cotton on the day agreed upon and not until long after. They also alleged their readiness to have delivered the cotton on that day. The case was submitted to a jury upon special issues and upon their finding the court rendered judgment for the appellees. The findings of the jury are as follows:

"(1) That it was the contract between plaintiff and defendant that the 100 bales of cotton at basis of 31 cents middling was to be delivered f. o. b. cars Tahoka, Tex., not later than October 20, 1919.

"(2) That the defendants were ready and willing to deliver to plaintiff 100 bales of cotton, middling basis, at 31 cents on October 20, 1919.

"(3) That S. W. Staton, agent of plaintiff, came to Tahoka, Tex., and demanded delivery of the cotton October 23, 1919.

"(4) That the market value of middling cotton, Tahoka, Tex., October 20, 1919, was 35 cents per pound.

"(5) That it was the general custom among persons dealing in spot cotton or contracts for future delivery for the buyer to have a representative at the place of future delivery on the day for delivery to grade and classify the cotton, settle for same, and give shipping instructions.

"(6) That Von Harten and Clark were financially able to carry out the contract and pay for said cotton October 20, 1919, and also October 23, 1919, when its agents called on defendants for delivery.

"(7) That the defendants did not tender to plaintiff f. o. b. cars, or to the railway company at Tahoka, for plaintiff, 100 bales of cotton of the grade specified in said contract on October 20, 1919."

Appellant's assignment is based upon its motion in the trial court for a judgment, on the ground that the jury found that the defendant sold to plaintiff 100 bales of cotton at a basis of 31 cents middling, to be delivered f. o. b. Tahoka, Tex., not later than October 20, 1919, and also found that the defendants did not tender to plaintiff f. o. b. cars nor to the railway company at Tahoka, Tex., for plaintiff, the cotton, and found that plaintiff was financially able to pay at said date, and because plaintiff, through its agent, demanded delivery on the 23d day of October, 1919, and that defendants refused delivery.

The appellant asserts, where the time is fixed in a contract of sale, the vendor becomes the first actor, and that, as the contract calls for delivery f. o. b., it does not call for payment or tender before delivery to a carrier, and that usage or custom cannot contradict or enlarge a contract that requires no explanation. Appellant's propositions, as abstract propositions, may be in the main correct. The contract was for 100 bales of cotton at 31 cents, basis middling, f. o. b. Tahoka, to be delivered any day not later than the 20th day of October. The appellant assumes that appellees were to deliver middling cotton. Such are not the terms of the contract. They were to deliver 100 bales at 31 cents, basis middling. This indicates they had agreed on middling cotton as a basis in arriving at the price to be paid for other grades in the 100 bales. Manifestly cotton delivered above or below middling in grade would have been a compliance with the contract. The testimony of Mr. Maedgen, who made the contract, is to the effect that there are several grades of cotton—

"such as good middling, strict middling, middling fair, middling, and low middling. It is also a fact that there is a recognized difference in the prices of the different grades. The basis from which these prices are figured is the price of middling cotton."

He also testified that it was an invariable custom to grade and classify cotton at the time of delivery as the basis of settlement.

"The variation in the price according to grades of cotton is pretty well defined. If there had been as...