Z. T. Fort Produce Co. v. Dissen

• Decision Date: 04 March 1907
• Citation: 101 S.W. 477
• Parties: Z. T. FORT PRODUCE CO. v. DISSEN.
• Court: Texas Court of Appeals

101 S.W. 477

Z. T. FORT PRODUCE CO. v. DISSEN.

Court of Civil Appeals of Texas.

March 4, 1907.

Rehearing Denied March 21, 1907.

Appeal from Harris County Court; Blake Dupree, Judge.

Action by the Z. T. Fort Produce Company against B. C. Dissen. From a judgment for defendant, plaintiff appeals. Affirmed.

Byers & Byers, for appellant. Hunt & Myer, for appellee.

REESE, J.

The Z. T. Fort Produce Company is a produce dealer in Denver, Colo. B. C. Dissen is a produce dealer in Houston, Tex. In September, 1905, T. H. Thompson, a produce broker in Houston, acting for and as the agent of the Fort Produce Company, sold to Dissen a car load of cabbage and other vegetables for a price named. It was understood by the buyer that he was to pay freight on the goods from Denver to Houston. Nothing was said at the time of the sale about the terms, further than that the prices quoted were f. o. b. cars at Denver, which seems to have been understood by both Thompson and Dissen to mean only that freight from Denver to Houston was to be paid by Dissen. The car of produce was delivered at Denver in good order to the carrier, and bill of lading taken to "shipper's order, notify B. C. Dissen," with a notation upon it, "Inspection allowed." The produce company drew a draft on Dissen for the amount due, $385.02, with bill of lading attached, and sent same to a bank in Houston. When the draft was presented, Dissen told the bank that as soon as the car arrived and he had inspected it, if the produce was in good condition, he would pay the draft. When the car arrived it was inspected by Dissen, in company with Thompson. The produce was in bad condition, and Dissen declined to receive it or to pay the draft. The stuff was sold by Thompson for $130, and the proceeds remitted to the produce company. This suit is brought by the produce company to recover $385.02, the agreed price of the goods; but plaintiff admitted that it was subject to a credit of $130 received as the proceeds of sale of the car. Upon the trial before a jury a peremptory instruction was given to find for defendant. From the judgment the plaintiff appeals.

The various assignments of error present the question of the error of the court in admitting evidence, over objection of appellant, of a general custom in Houston among produce dealers, by reason of which, in all cases where produce such as was embraced in this sale is ordered from a dealer involving a shipment to Houston, the buyer is allowed to inspect the goods upon arrival, and, if not in good condition, to reject them, notwithstanding the goods are sold f. o. b. cars at place of shipment. The undisputed evidence showed the existence of such a custom at Houston. Thompson, the broker and agent of appellant, who had been for many years engaged in business there, first as a produce dealer, and afterwards as produce broker, testified fully and unequivocally as to the existence of such custom, that it was invariable and general among produce dealers in Houston, and that it was well known. His testimony shows that the custom was well known to him when he made the sale to ap...