Duncan v. McMahan , 18 Tex. 597 ( 1857 )

Wheeler, J.

The witnesses estimated differently the quantity of the cotton, its value and price at the place of delivery, and the cost of its transportation thence to Houston. The jury had a right to adopt the estimate which they deemed nearest the truth ; and they probably estimated the quantity at forty-four bales, weighing five hundred pounds each; the price contracted to be paid for it, five and three-fourth cents per pound ; the cost of transportation to Houston one-half a cent; and its value in Houston at what it is proved to have been actually sold for there, viz.: seven and one-fourth cents. These estimates make the difference between the price at which the plaintiff purchased, and that which the defendant afterwards sold, (which was the lowest estimate of value the jury were warranted in finding,) the precise amount of the verdict. That the plaintiff was entitled to recover that amount does not admit of question. It might be a question whether he was not entitled to recover more ; whether, where there has been a sale of cotton, even without any stipulation (and the petition alleges none) as to quality, it is not to be taken that an average quality is intended ; and whether, therefore, the plaintiff ought not to have been allowed by the verdict, the difference between the contract price, and the value of so much cotton of an average, instead of an inferior quality, at the time and place of delivery. If there was any error in the verdict it was in favor of the defendant. It evidently was not affected by any of the rulings of the Court of which he complains ; and there is no error in those rulings, in any matter material to the case. The alleged delay of the plaintiff in taking away the cotton, appears to have been a mere pretence, set up by the defendant to justify him in taking and disposing of it for a higher price, when it had risen in valúe in the market. He had no reason to doubt that the plaintiff would take it away and pay for it according to his contract. He was apprised that he need not wait for his pay until the plaintiff had shipped the cotton, but could have it whenever he required it. The bargain was completely closed; the cotton was baled and on the spot where it was to have been delivered; and the defendant was at liberty to call for his pay whenever he chose, but the price having arisen in the market, he sent it away and disposed of it, in violation of his contract with the plaintiff. The instructions asked by the defendant had no application to such a state of case, and were rightly refused. As applied to the evidence, there was no error in the charge of the Court. There was no default or delay on the part of the plaintiff, as respected the performance of the contract on his part; and it is wholly immaterial, therefore, whether what would be a reasonable time for the performance of such a contract, be a question of law for the Court, or a mixed question of law and fact for the jury to decide under the instructions of the Court. The question did not arise in the case.

There is no reason to suppose that the jury took into consideration the quality of the cotton; and if there was error in the charge as to the right of the jury to consider the quality of the cotton in estimating the damages—which I apprehend there was not—it manifestly had no influence upon the verdict, and would afford no ground for reversing the judgment.

There is no error in the judgment, and it is affirmed.

Judgment affirmed»