Wichita Mill & Elevator Co. v. Simpson
| Decision Date | 12 January 1921 |
| Docket Number | (No. 1738.) |
| Citation | 227 S.W. 352 |
| Parties | WICHITA MILL & ELEVATOR CO. v. SIMPSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
Suit by A. C. Wright against Bounds & Simpson, who answered, making T. W. Thomas a defendant, who in turn answered, making the Wichita Mill & Elevator Company a defendant. Judgment for plaintiff against the defendants Bounds & Simpson, and in the latter's favor against the defendant Thomas, and in Thomas' favor against the defendant Elevator Company, and the last-named defendant appeals. Affirmed.
Mathis & Caldwell, of Wichita Falls, for appellant.
Percy Spencer and Vickers & Campbell, all of Lubbock, for appellees.
A. C. Wright sued Bounds & Simpson in the district court of Lubbock county, alleging that the plaintiff, in February of the year 1919, bought of the said defendant certain seed wheat for sowing on 26 acres of land owned by plaintiff, and situated in Lubbock county, Tex.; that the seed were sold for spring wheat, a variety of wheat which, if sown in the spring of the year, will mature during the following season; that the seed as sold were winter wheat, a variety of wheat which would not mature a crop if sown in the spring; that the crop springing from the winter wheat seed furnished by the defendants and sown by the plaintiff was valueless, wherefore plaintiff prayed for recovery of damages. Bounds & Simpson answered, and made T. W. Thomas, of Lubbock county, Tex., and the Wichita Mill & Elevator Company, a corporation having its principal office in Wichita county, Tex., defendants. They alleged that they applied to the said T. W. Thomas, who was in the grain business at Lubbock, for the purchase of the seed with which to fill the plaintiff's order, and were informed by the said Thomas that he did not have the seed in stock, but could secure the same from the Wichita Mill & Elevator Company, and it was thereupon agreed that he would order or purchase the seed from said company for the said Bounds & Simpson; that the said Thomas did order or purchase the said seed wheat from the said Wichita Mill & Elevator Company, such seed wheat being shipped from Wichita Falls to the said Thomas at Lubbock, Tex., the said company drawing on the said Thomas at Lubbock for the purchase price thereof, attaching bill of lading of shipment to its said draft, and that the said Thomas paid said draft at Lubbock, Tex.; that in due course the wheat was delivered to the said Bounds & Simpson, through the said Thomas. Said defendants prayed that in the event the plaintiff recovered of them they recover over against the said Thomas and the Wichita Mill & Elevator Company jointly and severally, or severally, according as they might be entitled under the facts. The Wichita Mill & Elevator Company filed its answer on June 7, 1920. This answer consisted of plea of privilege, plea of misjoinder, exceptions, and general and special answers. Bounds & Simpson filed a controverting affidavit to the plea of privilege. The pleas of privilege and misjoinder and the exceptions were submitted to the court on July 27th, at which time the plea of misjoinder and the exceptions were overruled, but the court at such time "refused to either sustain or overrule said plea of privilege, but took same under advisement to determine after the evidence in the main cause was submitted," and thereafter, upon conclusion of the trial of the case on the merits, overruled the plea. The defendant Thomas filed his answer and cross-action on the 27th of July. In this pleading he set up the facts substantially as alleged by Bounds & Simpson and prayed that, in the event judgment should be rendered against him in favor of Bounds & Simpson, he recover over against the Wichita Mill & Elevator Company. On July 28th the Wichita Mill & Elevator Company answered this cross-action of the defendant Thomas, the answer consisting of general and special denials.
On trial evidence was offered in support of the facts pleaded by the plaintiff and by the respective defendants and judgment rendered in favor of the plaintiff against the defendants Bounds & Simpson, in favor of the said Bounds & Simpson over...
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Smith v. Citizens' Nat. Bank
...a showing of injury. The trial court seems to have exercised a sound discretion and his action should be upheld. Wichita Valley, etc., v. Simpson (Tex. Civ. App.) 227 S. W. 352. If the trial court had tried the plea first and overruled it, from which an appeal was prosecuted, this would not......
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Newlin v. Smith
...asserting the plea of privilege has been injured by such ruling. Griffin v. Linn (Tex.Civ.App.) 3 S.W.2d 148; Wichita Mill & Elevator Co. v. Simpson (Tex.Civ.App.) 227 S.W. 352." See, also, Wichita Mill & Elevator Co. v. Simpson et al., Tex.Civ.App., 227 S.W. 352; Producers' Oil Co. v. Dani......
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Universal Credit Co. v. Richey
...Especially is this true where, as in this case, the facts would be practically the same on both hearings. Wichita Mill & Elevator Co. v. Simpson et al., Tex.Civ. App., 227 S.W. 352; Mercantile Bank & Trust Co. et al. v. Schuhart et al., Tex.Civ. App., 277 S.W. 1087; De Mars v. Montez, Tex.C......
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Mercantile Bank & Trust Co. v. Schuhart
...We overrule the proposition that it was error to try the plea of privilege with the case on its merits. Wichita Mill & Elevator Co. v. Simpson (Tex. Civ. App.) 227 S. W. 352; Smith v. Citizens' National Bank (Tex. Civ. App.) 246 S. W. The Dallas bank, in its plea of privilege, alleged, in a......