Holt Smith v. Texas Moline Plow , 1912 Tex. App. LEXIS 781 ( 1912 )

TALBOT, J.

This is a suit brought by appellee against appellants to recover the purchase price of certain wagons and buggies sold to appellants in April and June, 1909, together with interest and attorney’s fees. Appellants admitted the purchase of the goods, and also admitted an indebtedness to appellee in the sum of $285.50, which amount was tendered into court. As to the remainder of the indebtedness they denied liability on the grounds: (1) That appellee had contracted with the Center Hardware Furniture Company for it to take the buggies and wagons and assume responsibility for the purchase price, and to release appellants from liability, to which agreement appellants had consented. (2) That, if appellee did not make this agreement, its agent, G. N. Rogers, did, and that the agreement was afterwards ratified by appellee. (3) That, if appellee did not make or ratify the agreement, it understood that appellants had delivered all the wagons and buggies to the Center Hardware Furniture Company, believing that such agreement had been made, and that appel-lee did not object to the arrangement, but, on the contrary, sent blank notes covering the purchase price of the goods to the Center Hardware Furniture Company for execution, and said nothing whatever to appel-ants about paying for the goods until all, or substantially all, of the wagons and buggies had been sold, and that, by these and other acts, appellee was estopped from saying that such contract had not been made. A jury trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,456.-40, and the defendants appealed.

[1] The first assignment of error complains of the trial court’s action in admitting in evidence, over the objection of the defendants that the same were irrelevant and immaterial, certain orders given by the Center Hardware Furniture Company to plaintiff, dated July 15, 1909, for goods embraced in said order. The propositions contended for under this assignment are (1) that these orders were not material or relevant to any issue made by the pleadings; (2) that it is reversible error to admit, over the objection of defendants, immaterial and irrelevant matters which may prejudice their rights. This testimony, we think, was clearly admissible upon the issues tendered by the defendants to the effect (1) that the plaintiff had contracted with the Center Hardware Furniture Company, with' the consent of defendants, for said company to take certain wagons and buggies constituting a part of the items of the claim sued on, assume responsibility for the purchase price thereof, and release defendants from liability; (2) that, if plaintiff did not make such contract itself, its agent, G. N. Rogers, did, and the same was after-wards ratified by plaintiff. The defendants having offered evidence of a telephone conversation between the plaintiff and its agent, and having then sought to prove that by said conversation the plaintiff agreed that the Center Hardware Furniture Company might take the wagons and buggies in question, and to release them from liability for the purchase price of the same, or had thereby ratified an agreement to that effect made by its agent, it was competent for the plaintiff to show that it had sold other and different goods, as evidenced by the orders given therefor, to said Center Hardware Furniture Company, and that such telephone conversation had reference to such sale. Such was evidently the purpose and effect of the evidence objected to, and the court did not err in admitting it for that purpose.

[2] Nor did the court commit material error, if any at all, in admitting in evidence the certified copy of the charter of the Center Hardware Furniture Company and the affidavits of the incorporators therefor. The defendants having alleged that they had agreed with the plaintiff to transfer the goods shipped them to Center Hardware Furniture Company, a copartnership, and having offered testimony that it was still a copartnership, evidence to the effect that said company was not a partnership concern at the time of the institution of the suit, but a corporation, was admissible.

[3] If, however, the evidence was immaterial, as is contended by appellant, we fail to see how its admission could have resulted in any substantial injury to defendants.

[4] There was no material error, if error at all, in admitting in evidence the letter written by plaintiff to its„agent, G. N. Rogers, dated July 21, 1909. This letter, it seems to us, was admissible in rebuttal of testimony offered by the defendants to the effect that the plaintiff had agreed to allow a transfer of certain of the goods involved in this controversy to the Center Hardware Furniture Company, and to release defendants from liability for the price thereof. The letter was shown to have been written, as we understand the testimony, at the time of the alleged transfer, and showed exactly what had been done or agreed to, and was a part and parcel of the transaction. Defendants had shown the alleged telephone conversation, and we think it was competent for the plaintiff to show all the communications between the parties at that time in reference to the subject of said conversation.

[5, 6] The court, among other things, charged the jury as follows!: “If you believe from the evidence that Rogers, acting as the agent and on behalf of the plaintiff on or about the time pleaded in defendants’ answer, entered into an agreement with the Center Hardware Furniture Company and the defendants, Holt & Smith, whereby the goods in controversy were to be delivered to the Center Hardware Furniture Company by Holt & Smith, and that the Center Hardware Furniture Company was to assume the terms of the contract originally entered into by and between plaintiff and defendants, and that the defendants were to be released from liability to plaintiff, and you further find from the evidence that the plaintiff was afterwards informed of the agreement and ratified the same, then you will find for the defendants, except as hereinbefore instructed.” This charge, in so far as it required the jury to find, in order to return a verdict for defendants if the other facts therein enumerated existed, that Rogers acted as the agent of plaintiff, is objected to and made the basis of appellants’ fifth assignment of error. The contention is that the charge in the respect mentioned is erroneous, for the reason that, if the acts of Rogers were ratified by the plaintiff, the terms of the agreement claimed to have been made by him would be binding upon the plaintiff, regardless of whether or not Rogers acted as its agent. If it should be conceded that the contention is technically correct, still the error in the charge should not, in our opinion, operate to reverse the case. It is a principle of universal recognition that there can be no binding ratification without full knowledge of all the facts, and there is no evidence in the record that appellee with full knowledge of the acts of Rogers afterwards ratified them. Besides, the case was tried upon the theory, advanced by appellants themselves, that whatever Rogers did in the matter was done by him as the agent of appellee, and to this effect was the evidence introduced by them. In other words, there is no pretense that Rogers acted otherwise than as the agent of appellee, and there is no evidence whatever that we have discovered upon which any other contention or finding could be based.

[7] The further contentions that “the charge was misleading and was erroneous, in that it required a finding that the agreement referred to was made both with the Center Hardware Furniture Company and appellants,” whereas there is neither pleading nor proof that Rogers made any such agreement with appellants, are without merit, and will be overruled.

We have carefully considered all of appellants’ assignments of error, with the conclusion reached that none of them disclose reversible error. The evidence is amply sufficient to support the verdict of the jury, and the judgment of the court below is affirmed.