Yetter v. Hudson

• Decision Date: 21 December 1882
• Docket Number: Case No. 4528.
• Citation: 57 Tex. 604
• Parties: W. W. YETTER ET AL. v. W. T. HUDSON ET AL.
• Court: Texas Supreme Court

57 Tex. 604

W. W. YETTER ET AL.

v.W. T. HUDSON ET AL.

Case No. 4528.

Supreme Court of Texas.

Dec. 21, 1882.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

Suit filed May 6, 1881, in the district court of Tarrant county, by appellants, to recover from W. T. Hudson $14,200 damages, alleged to be due from Hudson to appellants, by reason of a breach of contract on the part of Hudson to deliver to appellants on the 1st day of May, 1881, sixteen hundred head of yearling steer cattle, at $6.50 per head.

The First National Bank of Fort Worth was also made a defendant, as a depositary of certain collaterals as securities, under allegations that the parties making the contract here sued on deposited the same with the president of said bank for the benefit of the party who should be entitled to have the same in case of breach of the contract. Prayer for judgment against defendant Hudson for damages as above stated, “and for the possession of said Scott notes and the enforcement of their lien thereon, and the amount of said notes when they can be collected be decreed to plaintiffs, and that plaintiffs have their execution against Hudson for all their dues; and that all their rights in the premises be enforced, and for general and special relief in law and in equity.”

There was, February 27, 1882, a trial of the cause by a jury, which resulted in a verdict for appellants against appellee Hudson for $7,659.53, and for appellee, the First National Bank of Fort Worth, judgment upon the verdict against appellee Hudson for said sum of $7,659.53 and costs; that appellee, the First National Bank, go hence without day, and recover from appellants all costs in this behalf expended, etc. Appellants made a motion for a new trial, which was by the court overruled, to which ruling appellants excepted, and gave notice of appeal, assigned errors, and brought the cause up by appeal.

The appellants' counsel, in his brief, stated fully the case as made in the petition, as follows:

Appellants alleged in their petition that on the 23d of November, 1880, at the special instance and request of appellee Hudson, they purchased of him sixteen hundred head of yearling steer cattle, which Hudson was to deliver to them in Johnson county, Texas. That the contract for the purchase, sale and delivery of the cattle was in writing, a copy of which contract was made an exhibit and part of the petition; that by its terms appellants were to pay for the cattle $6.50 per head, and that appellants advanced and paid appellee Hudson $7,000 on the price of the cattle. That on November 23, 1880, appellee Hudson executed and delivered to appellants his obligation in writing for the $7,000, payable in cattle according to the contract; and in case the cattle were not delivered according to the contract, then this obligation became a promissory note, payable in money at the First National Bank in Fort Worth, in Tarrant county. This obligation was made an exhibit and part of the petition. Appellants further averred that they bound themselves by the contract to forfeit and pay Hudson $1,600 in case they failed to perform their part of the contract, and Hudson, on the 23d of November, 1880, executed and delivered to them his obligation in writing for $1,600 as a forfeit, which obligation was made an exhibit and part of the petition, and by its terms he (Hudson) was, in case of failure to comply with his contract, to pay the same at the First National Bank. That as security for the money advanced, and on his forfeitures, Hudson indorsed other notes of one Winfield Scott, ten in number, the principal thereof amounting to $9,447.92, which, with said contract and other instruments mentioned, were deposited with the bank, to be held for both parties, appellants and Hudson. Appellants alleged that they had faithfully complied with their contract; that Hudson faithfully promised them to deliver the cattle as contracted, and thereby induced them to make a large advancement to him, as set forth in exhibit “B,” to wit, $7,000, and that although the time had long passed when he was to deliver the cattle, and appellants had ever been, and were still ready and willing to receive them, and pay any balance that might be due, of which Hudson always had notice, yet he had not delivered the cattle or paid the sums of money mentioned in exhibits “A,” “B” and “C,” but had wholly failed to deliver the cattle or pay the money. That the obligation of $1,600 as a forfeiture was not accepted by appellants as a measure of the damages they might sustain by a breach of the contract on the part of Hudson, as would appear from exhibit “A.” That $6.50 per head was a reasonable price for the cattle at the time of making the contract. At that date they could have been purchased at a much less price, and that said price was so fixed by said Hudson himself. That it was understood by the parties to the contract, and expressed in the contract, that by acceptance of the obligations, with the securities therefor, appellants in no wise waived or surrendered any rights against Hudson for any breach of contract that might occur, and appellants averred that they could not purchase such cattle “at this late day” in the season for a less sum that $10 per head. Wherefore they have been damaged in the sum of $5,600, which amount they would have realized as gains on their contract upon the full performance thereof by appellee Hudson, and for which sum, together with the $7,000 advanced on the contract, together with the $1,600 forfeit, with interest thereon, amounting in the aggregate to $14,200, besides interest, for which they sued. Appellants further alleged that the contract, with both obligations and the Winfield Scott notes and securities, were deposited with the First National Bank, and that said bank had the same in possession, and still had and refused to deliver the same to appellants. Wherefore the bank was made a party that it might be required to produce and deliver up said instruments, that appellants enforce their rights in reference thereto, and equity in the premises be done. Appellants prayed for citation for Hudson; for judgment against him for their debt, interest, damages and costs; for possession of the Scott notes; for the enforcement of their lien thereon; that the amount of same be allowed to them when the notes could be collected; for execution against Hudson for all their dues, and that all their rights in the premises be enforced, and for general and special relief in law and equity.

The contract for the sale of the cattle was marked exhibit “A,” and made a part of the petition. By its terms, Hudson, for $6.50 per head, bargained and sold to appellants one thousand six hundred yearling steer cattle to be of full age,--one year old each,--good average northern Texas cattle, and to be gathered and delivered to appellants at Hudson's ranche, on Mustang creek, in Johnson county, Texas, on the 1st day of May, 1881. For the performance of which, Hudson bound himself, and for security, and as an earnest therein and therefor, he made a deposit, afterwards set out in the contract, and appellants, in consideration of the full and complete performance of the contract and delivery of the cattle of the kind and quality mentioned, to be branded with their brand, agreed, first, to pay Hudson on delivery, May 1, 1881, at a place specified, $6.50 per head for each and every one of the one thousand six hundred head; and for the purpose of binding themselves thereto, appellants deposited the sum of money afterwards expressed as a forfeit in case appellants should fail from any cause to comply with the requirements of the contract.

Second. Appellants agreed to furnish Hudson their branding irons to be used by him in branding the cattle in their specified brand as gathered, and not to claim title to the cattle so branded until delivered to them as before stated, requiring appellee Hudson, however, not to use the said brand on any cattle except such as were to be delivered to appellants. The irons to be returned on delivery of the cattle.

Third. Appellants agreed to furnish and advance on the price of the cattle $7,000 to appellee Hudson, he giving them security therefor in negotiable notes of Winfield Scott in the sum of, at least, $9,000, well secured, the same to be held with the contract. The amount so advanced to be accounted for to appellants on payment of the cattle. And by accepting the securities and notes aforesaid, appellants in no wise waive or surrender any rights against said Hudson for any breach of contract that may occur.

Fourth. Appellee Hudson agreed to execute his promissory note for the $1,600, and secure same with the Winfield Scott notes to appellants, to be deposited with the contract, payable to appellants as a forfeit and liquidated damages in case of failure or refusal to comply with the terms of the contract; and in case of his failure to so fulfill his part of the contract, then said note for $1,600 shall become absolute and payable at once. And appellants agreed to and promised to forfeit to appellee Hudson the sum of $1,600, out of the $7,000 advanced, in case of their forfeiture or refusal to comply with their contract.

Fifth. Neither party to the contract should be allowed to withdraw his deposit, or in anywise alter, change or incumber the same until after the fulfillment of the contract, and upon completion of the contract appellants should reindorse the Scott notes and securities, and allow the same to be withdrawn, and appellants shall then be at liberty to withdraw their said sum of $1,600.

Sixth. The contract with the said deposits shall be deposited at the First National Bank in Fort Worth, Tarrant county, and be subject to inspection of any of the parties, and held by the bank for both parties, and until the completion of said contract is declared to the bank by both parties, dated November 23, 1880, and signed by both parties. An...