Wilkins v. Burns

• Decision Date: 20 December 1893
• Citation: 25 S.W. 431
• Parties: WILKINS et al. v. BURNS.
• Court: Texas Court of Appeals

25 S.W. 431

WILKINS et al. v. BURNS.

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by Wilkins Bros. & Co. against Henry Burns. From a judgment for defendant, plaintiffs appeal. Reversed.

Simpson & James, for appellants. Devine & Smith and Wm. Aubrey, for appellee.

FLY, J.

The appellants, as plaintiffs in the lower court, filed suit for a balance of $961 due on 1,316 head of sheep at $2.25 per head, sold and delivered by plaintiffs to defendant, the sum of $2,000 having been paid by defendant on the sheep. Defendant (appellee) answered by general denial, and pleaded specially that the contract for the sheep was for the sale and delivery of fat mutton, fit for market, and weighing not less than 80 pounds per head, at Comstock, Tex., the place of shipment, and where they were to be received by appellee; that the class of sheep contracted for had not been received, but they were poor, and unfit for market, and not worth more than $1.75 per head; and that defendant sustained a loss thereby of 50 cents per head, amounting in the aggregate to $658. There was also an allegation of a loss of $1 per head in profits, which was excepted to by appellants, and stricken out by the court. The case was tried before the court, and judgment rendered for defendant for $915.

We predicate the opinion on the law of this case on the finding of the following facts: (1) That on the 23d day of February, 1889, appellants agreed to sell and deliver to appellee, Burns, at Comstock, Tex., on or before April 1, 1889, 2,100 mutton, at $2.25 per head, $2,000 of which amount was paid at the time of making the contract. (2) That the appellants knew that the sheep were to be shipped to market, and agreed to furnish fat mutton sheep that were in marketable condition. (3) That about the 15th day of March plaintiffs delivered at Comstock 643 sheep, which were, by order of appellee, who was in San Antonio, and did not see the sheep at Comstock, shipped in three car loads, — one to New Orleans, one to Galveston, and one to San Antonio. (4) That the sheep were not in proper condition for market, many being ewes, and were lean, and not in a good marketable shape, and were not worth more than $1.75 a head at Comstock; but if they had been fat mutton they would have been worth $2.25 per head. (5) That on or about March 25, 1889, appellee went from San Antonio to Comstock, where, after seeing the remaining sheep, he wrote to appellants, complaining not only of the sheep he had already received but of those at Comstock, and offering to take three additional car loads of the sheep if those that had been already shipped and the other three car loads were put at $2 per head. To this letter Wilkins replied that he was sorry the sheep did not come up to representations, and offering to pay back all of the $2,000 advanced not covered by the three car loads of sheep that had been shipped out, but he refused to take $2 per head for the sheep, as offered by appellee, and insisted on getting $2.25 per head. (6) After getting this letter, appellee received and shipped 673 more of the sheep, knowing at the time that appellants had refused to sell them for less than $2.25 per head, and insisted on being paid that price. The court filed his conclusions of law and fact. There is also a statement of facts in the record.

There was no exception to the findings of law and fact in the lower court, and it is insisted by appellee that the only inquiry on this appeal will be as to whether the pleadings authorized the judgment, and we are cited to the case of Insurance Co. v. Milliken, 64 Tex. 46, in support of this proposition. In that case there was, in the record, neither bills of exception nor statement of facts; and the rule laid down in that case applies only where there is no statement of facts nor bills of exception. Tudor v. Hodges, 71 Tex. 392, 9 S. W. 443. There is an exception to the judgment rendered by the court, and it became unnecessary to except to the findings of the court. In the case in 64 Tex. neither the findings nor judgment was excepted to by appellant. Voight v. Mackle, 71 Tex. 78, 8 S. W. 623. In this case the contract was for the delivery of fat mutton at Comstock, and the facts show, when the first sheep, to wit 643 head, were delivered, appellee was not present, and the condition of the sheep was not made known to him until after the sheep had arrived by railroad at San Antonio. These sheep were worth only the sum of $1.75 per head, while they should have been worth, under the contract, $2.25 per head. Appellee had the right to have the quality of sheep delivered to him as...