P. C. Tomson & Co. v. Heidenheimer , 16 Tex. Civ. App. 114 ( 1897 )

P.C. Tomson Co., plaintiffs in error, resident in Philadelphia, December 24, 1895, sued I. Heidenheimer, Jr., and L. Sinsheimer, partners doing business under the firm name of I. Heidenheimer, Jr., Co., resident in Austin, Texas, on alleged balance due for goods sold defendants on August 8, 1895, consisting of 275 boxes of Hoe Cake soap, at $3.20, and 150 boxes of O.C.W.A. lye, at $2.20, all aggregating $1194, the balance claimed to be $325.

Defendants paid for the soap on August 26, 1895, and were credited with $5, thus leaving alleged balance.

Plaintiffs alleged that they were to furnish, at their own expense, a traveling salesman to assist defendants in selling the goods for a period of three weeks, which agreement, it is alleged,they complied with.

Defendants alleged that plaintiffs had originally shipped them the lye wrongfully, without being ordered, but that they (defendants) subsequently agreed to purchase the same, and at the same time purchased the soap, on condition that plaintiffs should furnish them a salesman who should sell for them more than one-half the lye, the entire purchase being one transaction. Defendants claimed a reduction on the price of the soap, for shortage in weight, $216; storage on the lye, $187, and $28 freight on the lye.

The trial resulted in a verdict for plaintiffs for $80, with interest from January 1, 1896, and judgment was rendered for plaintiffs for $82.67. Plaintiffs have brought the case to this court by writ of error.

The evidence sustains the following conclusions: Heidenheimer Co. had bought from plaintiffs' agent, Watson, 100 cases of Old Country Wood Ash lye some months before the alleged sale of the 150 cases in suit. There was a cut rate of freight from New York to all points in Texas, including potash. Watson was in Austin and solicited a sale to Heidenheimer of the 150 cases of lye in question. Some negotiations were had, but Heidenheimer declined to take the lye. He had bought a freight car from New York to Austin to ship other goods, and paid the freight charges, and when the car arrived the lye was on board. The entire contents of the car were consigned to Heidenheimer Co. They paid the freight on the lye at the cut rate. The regular rate was 75 cents, and the cut rate 30 to 35 cents.

After the arrival of the lye, which had been stored in Heidenheimer's warehouse, Watson came along and Heidenheimer demanded of him the freight on the lye — the difference between the regular and the cut rate. Watson declined to pay same. Heidenheimer then held the goods in store for plaintiffs. Watson could not settle with Heidenheimer, who refused to take the lye. Plaintiffs then sent Mr. Wilson, their State agent, to adjust the matter. Plaintiffs had then a car of soap at the depot in Austin. It was then agreed that defendants should take the soap and the lye at stated prices, plaintiffs to furnish a traveling salesman for three weeks, who should sell for defendants one-half the lye. There were twelve or fourteen cases of soap short. The original bill was 275 cases of soap.

Plaintiffs sent a traveling salesman (Watson), who went with Heidenheimer's salesman, and the two together sold about ten cases of the lye, four of which were returned by the purchasers, Heidenheimer paying freight both ways on the goods returned. Watson sold four or five cases.

The reasonable storage price to Heidenheimer would be 5 to 8 cents per case per month, and plaintiffs were notified of the charge that would be made for the storage of the lye.

The Hoe Cake soap should have weighed twelve ounces to the bar, and the boxes were marked seventy-five pounds each. The soap was bought for full weight. Each box should have contained 100 bars at twelve ounces to the bar, and this soap should have so weighed. The bars of soap in question weighed two to four ounces less than the standard weight of this soap; it weighed from eight to nine ounces, some eight and one-half, some nine ounces.

Defendants had had the soap on hand several months, selling from it. They sold a bill of the soap to Gresham Co., of Smithville, Texas, and on December 9, 1895, Gresham Co. wrote Heidenheimer Co. that the soap, though marked on the box 100 pieces, seventy-five pounds, did not contain seventy-five pounds; that the bars only weighed eight and one-half ounces; that they had established a trade at Smithville on the soap and could not afford to handle "short weight" goods, and would not permit competitors to do so without exposing them to their trade; that they could not use the goods, and that they were still at the depot, subject to Heidenheimer Co.'s order.

Heidenheimer Co. did not know, until the Gresham letters were received, that the soap was short in weight. They then weighed it, and its weight was short, as stated. After this Heidenheimer instructed his men not to sell the soap as full-weight soap, but at a reduced price.

Heidenheimer's loss on the soap was three ounces to the bar, or 300 ounces to the case, about nineteen pounds to the case — in all, a loss of $216.

When Heidenheimer Co. paid plaintiffs for the soap they did not know it was short weight. They at once informed plaintiffs when the fact was ascertained, and informed their agent, Wilson, that they would hold his company for the short weight. Heidenheimer Co. sold the rest of the soap at reduced prices. They had paid plaintiffs $3.20 per case for it. They had on hand lye previously purchased from plaintiffs, and the sales of lye that were made were filled out of that before purchased, leaving all the lye in question still on hand.

The testimony fully warrants the verdict, which reduces the claim of plaintiff to $80 and interest.

The testimony is conflicting on nearly all the material points, but the verdict settles the conflict in favor of defendants, and authorizes the statement of facts as set out herein.

Opinion. — The court did not err in submitting the issue of freight due Heidenheimer. There was testimony authorizing the court's charge. There was testimony that plaintiffs did not comply with the contract made by Wilson with defendants in settlement of the disputes of the parties. Plaintiffs having repudiated the new contract by refusal to carry it out, defendants were remitted to their original cause of action, having the right to treat the contract as abandoned. Railway v. Richards, 30 Law. Rep. Ann., 32 (Illinois Supreme Court), and notes. This answers both the second and third assignments of error.

The freight charges and storage of defendants were fully proved, and it was not error to submit the issues. If the court's charge was not full enough as to what constitutes a sale, plaintiffs should have asked instructions covering the omission.

It was not error to allow Sinsheimer to testify to facts showing that he had no interest in the result of the suit. He had been a partner with Heidenheimer and was sued as such, but had sold to the latter, who had indemnified him as to past liabilities of the firm. His interest or not was a proper consideration in determining the weight and credibility of his testimony.

The mere fact that a witness's testimony is contradicted by opposing testimony will not warrant proof of his reputation for truth. Such opposing testimony is not such an impeachment as will put his character for truth in issue, so as to justify proof in support of his character for truth by the party introducing him. 1 Greenl. on Ev., sec. 469; Railway v. Younger, decided by this court at the present term; 1 Whart. on Ev., sec. 569, p. 556, and note 9.

There was no error in permitting defendant Heidenheimer to file a supplemental answer during the progress of the trial showing that Sinsheimer was no longer a member of the firm of Heidenheimer Co. and was not interested in the suit, and that Heidenheimer had assumed all the debts of the firm and was alone interested in the suit. The supplemental answer did not change any issue in the case. Its object was to show that Sinsheimer had no interest in the suit, that he was indemnified, and could recover nothing by the judgment if it went for defendants. It was irregular, but in our opinion harmless, and not reversible error. Such matters are largely in the discretion of the court. Trotti v. Hobby Post, 42 Tex. 353. The pleading filed could in no way affect the issues on trial, and the judgment should not in that case be reversed.

Plaintiffs in error present an assignment of error that "the verdict and judgment are not supported by the pleadings."

Plaintiffs sued on account for goods sold and delivered defendants. Defendants denied, pleaded in reconvention certain matters set up, amounting to more than plaintiffs' debt, did not ask for a rescission, but declared that the sale of part of the goods was never completed and never went into effect. Plaintiffs recovered only a part of their alleged debt — evidently sustaining portions of the defendants' answer.

We think the verdict and judgment are warranted by the pleadings. The fact that the court instructed the jury that in a certain contingency plaintiffs would be entitled to the possession of the lye, upon which there was no special finding by the jury, would not change the question raised in the assignment of error; it would not take the place of pleading. The question raised on the charge and the failure of the jury to find in response to it is not germane to the assignment of error. It is a different question, made in the statement under the assignment, following which there is no proposition. We can only consider the assignment itself and dispose of the question it presents. It presents no ground of error.

The testimony supports the verdict and the judgment, and it is affirmed.

Affirmed.