Wells v. Yarbrough

• Decision Date: 20 May 1892
• Citation: 19 S.W. 865
• Parties: WELLS <I>et al.</I> v. YARBROUGH.
• Court: Texas Supreme Court

19 S.W. 865

WELLS et al. v. YARBROUGH.

Supreme Court of Texas.

May 20, 1892.

Appeal from district court, Fannin county; E. D. McCLELLAN, Judge.

Action by M. D. Wells & Co. against T. B. Yarbrough for goods sold and delivered. Judgment for defendant. Plaintiffs appeal. Affirmed.

Evans & Evans and Brown & Bliss, for appellants.

HENRY, J.

On January 11, 1889, M. D. Wells & Co. filed suit against T. B. Yarbrough for $668.04 for goods sold and delivered to him about July 10, 1886. By amendment filed September 29, 1889, plaintiffs set up that about July 10, 1886, at defendant's special instance and request, they had sold and delivered to him goods, wares, and merchandise, described in an exhibit attached to their petition at the prices named in said exhibit, aggregating $668.04, of which sum defendant was to pay to plaintiff $20.24, 30 days after the sale, and the balance 4 months after September 15, 1886. This count closed with the usual allegations of default on the part of defendant, etc., and prayer for relief. By another count in said amended petition plaintiffs alleged in substance that during the year 1886, and for a long time prior thereto, the defendant had been wholesaling or jobbing in a small way, as well as retailing goods, as a merchant, in Honey Grove, Tex., and plaintiffs had been furnishing him with boots and shoes, not only for his retail trade, but for his wholesale trade as well: that among those to whom the defendant had wholesaled in a small way, and for whom plaintiffs had supplied to defendant boots and shoes, were Pickens & Thomas at Gober, Tex., and H. C. Rumbley at Cooper, Tex.; that during a visit of plaintiffs' salesman to defendant's place of business during July, 1886, defendant expressed a doubt as to the quantity of goods that would be needed by Pickens & Thomas and Rumbley, and said salesman proposed that he would himself see said parties for the defendant, take their orders, and ship the goods direct to them, so charging the goods to defendant, and pricing them to said parties, as to enable the defendant to make his usual profit, to which proposition defendant assented; that, in pursuance of this agreement, plaintiffs' salesman, Bradley, visited said parties, took their orders, duplicated them, sent one set to plaintiffs, with a letter fully explaining the matter, and sent the other set to defendant; that plaintiffs duly forwarded the goods direct to Pickens & Thomas and Rumbley, and at the same time made out duplicate invoices, (except prices,) sending one set to Pickens & Thomas and Rumbley, respectively, and one set to Yarbrough, the defendant; that the difference in prices between the sets sent to Yarbrough and those sent to Pickens & Thomas and Rumbley covered the usual profit made by defendant in wholesaling goods to those parties; that the invoices sent to Yarbrough showed that the goods were charged to him, and, with exception of an item of $20.24 in the Rumbley bill, would be due from him 4 months after September 15, 1885; the small item of $20.24 was to be due in 30 days; that the invoices sent to Pickens & Thomas and Rumbley showed that the goods were to be paid for by them with the exception of two small items, 4 months after September 1, 1886; that plaintiffs charged defendant on their books for the goods at the prices named in the invoices sent to him, and made no charge whatever against Pickens & Thomas and H. C. Rumbley; that the goods shipped to Pickens & Thomas had been duly paid for, but default had been made as to the Rumbley bill, aggregating $668.04; and prayed for judgment, etc. Plaintiffs further charged that defendant well knew that the goods shipped to Rumbley had been charged to him, and that ...