Wootters v. Kauffman

• Decision Date: 11 March 1887
• Citation: 3 S.W. 465
• Parties: WOOTTERS and others v. KAUFFMAN and others.
• Court: Texas Supreme Court

Page 465

3 S.W. 465

WOOTTERS and others v. KAUFFMAN and others.

Supreme Court of Texas.

March 11, 1887.

Appeal from district court, Galveston county.

Geo. Mason and D. A. Nunn, for appellants. Waul & Walker, for appellees.

GAINES, J.

J. C. Wootters & Co. brought this action to recover of Duble & Wootters and Julius Kauffman the value of certain cotton alleged to have been consigned to Duble & Wootters, as cotton factors, in the city of Galveston, for sale, and to have been delivered to Kauffman for shipment to Liverpool, and sale in that market. Plaintiffs claim that the delivery of the cotton to Kauffman was without their authority, and was therefore illegal, and seek to hold the defendants responsible for the alleged conversion. The judgment and verdict were in their favor against J. H. Wootters, as surviving partner of Duble & Wootters; but against them in favor of the other defendants, who had been made parties as the widow and heirs of Julius Kauffman, who died since the institution of the suit. That a cotton factor in Galveston, to whom cotton has been conveyed for sale, has no right, in the absence of direct authority from the consignor, to ship it to a foreign market for disposition, and that one who receives it from the factor for that purpose is responsible to the owner for its value, are propositions that are settled by the decision of this court in the case of Kauffman v. Beasley, 54 Tex. 563. To avoid the effect of these rules of law, on the trial in the court below, the widow and heirs of Kauffman sought to show that during the season in which the cotton was shipped, a custom existed in the city among factors to receive advances upon cotton consigned to them, and to send it to foreign markets for sale. The one person offered to prove this was the witness Runge, whose testimony was admitted over the objections of the plaintiffs. This ruling of the court was excepted to, and is now assigned as error.

Of the insufficiency of the evidence upon this point, taking it all together, there can be no question. It has been held by courts of high authority that a custom cannot be established by the testimony of a single witness. Wood v. Hickok, 2 Wend. 501; Halwerson v. Cole, 1 Speers, 321; Barclay v. Kennedy, 3 Wash. C. C. 350. But to this line of decision the latter cases seem not to have adhered. It is admitted by these more recent authorities that from the nature of the case, if a general custom exist, more than one witness can always be found to establish it; yet it is urged that this is not of itself a sufficient reason for making an exception to the general rule that a fact in issue may be proved by the oath of one person alone. Robinson v. U. S., 13 Wall. 363; Vail v. Rice, 5 N. Y. 155; Jones v. Hoey, 128 Mass. 585; Partridge v. Forsyth, 29 Ala. 200. These cases just cited would seem to lay down the better doctrine. But all the courts agree that, if the testimony of the one witness in support of a custom be contradicted by others, the custom cannot be held established. It is reasonable to presume that if such general usage exist as is essential to show a custom in a particular branch of business, that every one engaged in such business should know it; and hence, if the fact be called in question, more than one witness could be brought to support it. See Lawson, Usages, p. 98, § 54, and cases there cited. In this case three cotton factors of the city testified that no such custom existed, and no witness was called by defendants to support the testimony of Runge upon this point. The evidence was therefore insufficient.

But whether it be admissible or not is another question. We give the interrogatory and the answer of the witness which were objected to: "Was it generally understood by those engaged in the cotton business in Galveston, and those dealing with them in the country, and sending consignments of cotton, that this panic prevailed, was affecting trade, and that factors, for want of market at home, were shipping cotton abroad, and taking advances on consignments? Answer. Yes, the panic was generally known, and the adverse influences it had on cotton and trade generally; and people in business knew that large consignments were going forward, either because parties could not sell, or because they wanted to speculate for higher prices. The shipping was done for the purpose of getting cash advances." In answer to a question by the court, witness said: "That was the general usage of those engaged in cotton business at that time, to-wit, time of panic."

A custom, in order to affect the ordinary rules of law applicable to contracts in a particular business, must not be temporary, but must be general as to the particular trade, and so well established that every one dealing in that trade is presumed to know it. Lawson, Usages, 40, 44. The witness says the panic was generally known, and the adverse influence it had upon cotton, and that people in business knew that large consignments were going forward, and that was the general usage of those engaged in cotton business during the time of panic. He does not say that the factors had adopted a rule of shipping cotton abroad, that their customers knew this and had acquiesced in it, nor does he testify to any facts from which it must be presumed that the consignors of cotton knew that such a rule prevailed. His testimony is consistent with the theory that the factors were pressed for money, and when so pressed used their customers' cotton or their own in order to obtain it. Such a course of business, brought about by extraordinary circumstances, such as a commercial panic, ought not to be held sufficient to make transactions good which are otherwise contrary to law. Can factors, brokers, and other classes of agents, dealing in the property and credits of others, because of a commercial depression, adopt by express or implied consent a usage of trade, so as to extend their authority over the property confided to their care? Certainly not, unless a knowledge of the change in their way of doing business be brought directly home to their principals. In a recent case the supreme court of the United States say: "* * * The finding of the circuit court that the transactions between the factors and the plaintiffs were according to the general usage of trade between banks and cotton factors in St. Louis cannot aid the plaintiff, because the usage attempted to be set up was not shown to have been known to the defendants, or to other owners of cotton, and because it was contrary to law in that it undertook to alter the nature of the contract between the factors and their principals, which authorizes them to sell, but not to pledge," etc. Allen v. St Louis Nat. Bank, 7...