Harlan-Elzy-Randall Co. v. American Fruit Growers, Inc.

Appellee brought this suit against appellant to recover damages resulting by reason of appellant's refusal to accept a car of cauliflower, which appellee sold from its place of business in California, and shipped to appellant at Dallas, Tex. Appellee alleged it sold said cauliflower for $729.30 and that on arrival thereof appellant refused to accept it; that in order to make the most advantageous sale of said cauliflower, it diverted same to New Orleans, where it sold said car for account of appellant and realized net therefor $91.94, leaving a balance due appellant of $641.36. In addition to a general demurrer and general denial, appellant specially pleaded that the cauliflower was not in accordance with that purchased; that it was purchased subject to inspection, by reason of which it refused to accept same, etc. In response to special issues the jury found:

"(1) The ear of cauliflower which was loaded, shipped, and tendered to the defendant was in compliance with the contract between plaintiff and defendant.

"(2) We find from the evidence that the expense of resale of the car of cauliflower was reasonable.

"(3) The plaintiff used reasonable diligence to obtain the highest market value in the resale of the car of cauliflower."

On these findings, and such findings as the court was authorized from the pleading and evidence to make, the court entered judgment for appellee for $641.36. Appellant duly appealed and presents the record here for review.

Under its first proposition, appellant contends the court erred in refusing to submit to the jury its specially requested issues Nos. 1 and 2, as follows:

"(1) Was the cauliflower worth as much or more in Dallas, Tex., as in New Orleans?

"(2) Was there a market at Dallas, Tex., for the cauliflower at the time the car of cauliflower was turned down and sent to New Orleans?"

In cases of this kind, under the settled rule in Texas, the appellee had the right to sell the car of cauliflower as the property of appellant and for appellant's account, and to recover, in a suit brought therefor, the difference between the contract price and the price such property brought, together with the necessary expenses incident to such sale. Waples v. Overaker, 77 Tex. 7, 13, S.W. 527, 19 Am. St. Rep. 727; Palestine Ice, etc., Co. v. Connally Co. (Tex.Civ.App.) 148 S.W. 1109; Texas Seed Co. v. Chicago Seed Co. (Tex.Civ.App.) 187 S.W. 747; Planters' Oil Co. v. Gresham (Tex.Civ.App.) 202 S.W. 145; Beaumont Cotton Oil Mill v. Sanders (Tex.Civ.App.) 203 S.W. 372. It is also the rule of law in this state that the seller in such cases, in reselling the property for the account of the defaulting purchaser, must exercise good faith to realize the best price he can on resale; that is, he must in good faith exercise such diligence as a man of ordinary prudence would under the same or similar circumstances, and if the seller exercises such prudence in reselling the property, the defaulting buyer should not be heard to say that the market in which the sale was made was not the most advantageous one. Waples v. Overaker et al., supra; Foote Co. v. Heisig Norvell (Tex.Civ.App.) 94 S.W. 362; Texas L. Lumber Co. v. Rose (Tex.Civ.App.) 103 S.W. 444. In response to the second and third special issues, the jury found that "the expense of the resale of the car of cauliflower was reasonable," and that "the plaintiff did use reasonable diligence to obtain the highest market value in the resale of the car of cauliflower." These were, on this phase of the case, the vital, controlling, and ultimate issues. Texas L. Lumber Co. v. Rose (Tex.Civ.App.) 103 S.W. 444. Both of appellant's specially requested issues presented matters only evidentiary and not any ultimate issue in the case. The first specially requested issue was not raised by any evidence. There was no evidence that cauliflower was worth as much or more in Dallas as it was in New Orleans; and if this issue had been submitted and the jury in answer thereto had found there was a market for cauliflower in Dallas, such answer would not have settled any controlling issue, and said fact so found could have been considered only in determining the controlling issue as to whether or not appellee exercised proper diligence in the resale. If the evidence was sufficient to show there was a market in Dallas, this fact was proper to be considered by the jury, and doubtless was considered, in determining the said ultimate and controlling issue as to whether or not appellee used reasonable diligence to obtain the highest market price in the resale of said car of cauliflower. In the submission of special issues the court should require the jury to find the ultimate material issues, and not the evidence bearing upon such issues. Houston, etc., Ry. Co. v. Barger (Tex.Civ.App.)176 S.W. 870; Witchita Falls S. R. Co. v. Tucker (Tex.Civ.App.)261 S.W. 518. This proposition should be overruled.

Under its second, third, and fourth propositions, appellant contends the court should have instructed a verdict for appellant and that appellant's motion for new trial should have been granted, because the verdict of the jury was against the overwhelming preponderance of the evidence, in that the cauliflower was not of the character purchased. In response to the first special issue the jury found:

"The car of cauliflower which was loaded, shipped, and tendered to the defendant was in compliance with the contract between plaintiff and defendant."

I have carefully examined the evidence, and without undertaking to set it out, will say the evidence was not only sufficient to require the submission of special issue No. 1, but that the finding of the jury in response to said issue is supported by the evidence. There being substantial evidence to support the finding of the jury to the effect the cauliflower shipped and tendered appellant was in compliance with the contract, such finding is binding upon this court and it is without authority to disturb such finding. Northern Texas Traction Co. v. Weed (Tex.Civ.App.) 297 S.W. 534; Southern Casualty Co. v. Hernandez (Tex.Civ.App.) 297 S.W. 544; G. C. S. F. Ry. Co. v. Holland,27 Tex. Civ. App. 397, 66 S.W. 68; G. C S. F. Ry. Co. v. Mangham,29 Tex. Civ. App. 486, 69 S.W. 80. These propositions should be overruled

Under its fifth proposition, appellant contends, in effect, that the sale was by description, that in such sale the description be comes a condition precedent to creating any liability on the purchaser, and that the right to repudiate the purchase for nonconformity of commodity tendered with that described is universal; that there was evidence that it was customary for buyers to be allowed to inspect cars of produce before accepting same; that such custom was known to the agent for both parties, by reason of all of which appellant never accepted said produce, and so title never passed to appellant, and, this being true, appellee had no right to resell the produce, and so the measure of damages was the difference between the contract price and the market price at Dallas, and not the difference between the contract price and the net amount received on the resale for account of the purchaser. In other words, under propositions to the effect the court erred in refusing to instruct for appellant because there was no evidence that the cauliflower was in compliance with the contract of purchase, and that such finding is contrary to the overwhelming weight of the evidence, appellant attempts by a lengthy argument, styled its "fifth proposition," to raise the question that the court applied the wrong measure of damages. This proposition is not germane to these assignments or any others contained in the record, for which reason same is not entitled to consideration. It is thought, also, this proposition seeks to have this court review the case on a theory entirely different from that on which it was tried. This is not permissible under our procedure. Blum v. Whitworth, 66 Tex. 350,1 S.W. 108; Panhandle Grain Co. v. Dowlin (Tex.Civ.App.) 247 S.W. 873 (on rehearing). However, if this proposition be considered, it would have to be overruled, in that the evidence establishes the fact that the title to the cauliflower passed to the appellant under the terms of the contract of sale when same was placed with the common carrier at point of shipment in California for delivery to appellant at Dallas. It is also true, if the cauliflower was sold by description, and if by reason of its being so sold, appellant had the right to inspect same at the point of delivery before acceptance, still, as the jury found that the cauliflower loaded, shipped, and tendered to the defendant was in compliance with the contract, if title did not pass to appellant when the carrier received same at the point of shipment in California, such title did pass to appellant when delivery was tendered in Dallas, Tex. McLane Co. v. Swernemann et al. (Tex.Civ.App.) 189 S.W. 282; Robinson et al. v. H. T. C. Ry. Co., 105 Tex. 185, 146 S.W. 537; Adkins-Polk Co. v. Barkley, et al. (Tex.Civ.App.) 297 S.W. 757.

Under its sixth proposition, appellant contends, in effect, that the court erred in giving in charge special issue No. 1, in that said charge assumed that a contract had been established between appellant and appellee. There was no controversy but that a contract was made between appellee and appellant, and that in pursuance of said contract the cauliflower was loaded, shipped, and tendered to appellant at Dallas, Tex. The only issue on this phase of the case, made by the pleading and evidence, was as to whether or not the cauliflower was in compliance with the contract, which was properly submitted to the jury and found against appellant. This issue properly left the jury free to determine the issue of fact as to whether or not the cauliflower was in compliance with the contract. There is no merit in this proposition, and it should be overruled.

Appellant's eleventh proposition is as follows:

"Appellee supplying no competent proof of market or market prices in New Orleans, or that the cauliflower was then sold at said market price, appellant was entitled to a peremptory verdict as a matter of law, and further entitled, as a matter of law, to have said judgment and verdict set aside, as without support in the evidence."

The record discloses that E. M. Seifert was sales manager of appellee, and that the office and residence of said manager was in California. This witness testified by deposition without objection that after appellant refused said car, he tried to sell same in Dallas and other points near Dallas, but was unable to get an offer; that after trying other markets, he then diverted the car from Dallas to New Orleans, consigned to Lally Lally, appellee's brokers; that these brokers recommended that in order to get the highest obtainable price, the car be sold at auction, and that it was so sold by the Fruit Exchange of New Orleans for $556.45; that sale sheets were made by said Fruit Exchange to Lally Lally, and sent by Lally Lally, together with an itemized statement made by themselves, to said witness, and were attached by said witness as exhibits to his deposition. Interrogatory No. 104 inquired of the witness if he had the original sales sheets of the car of cauliflower in New Orleans, to which the witness answered: "We have." Interrogatory No. 105 was: "If you state you have the originals, then hand them to the notary and have him attach them and make them a part of your deposition." To which the witness replied: "It has been done." Interrogatory No. 107 was: "State if you have the itemized account of the sale of this car of cauliflower in New Orleans." To which the witness answered: "We have the original." Interrogatory No. 108 was: "If you state you have the original or copy of the sale account of this car of cauliflower at New Orleans, then hand it to the notary and have him attach it as an exhibit to your answer." To which the witness replied: "It has been done." Interrogatory No. 109 was: "Please state whether you sent another statement to the Harlan-Elzy-Randall Company, dated December 10, 1924." To which the witness replied: "We did." Appellant, as shown by its bill of exception, objected to each of the above interrogatories and the answer of the witness thereto. That is, it objected to the question, "Do you have the original sale sheets?" and the answer, "We do," and the question, "If so, attach it to your answers," and the answer, "It has been done." But appellant made no objection whatever to the introduction of said sale sheets, and they were introduced and read in evidence without any objection. And the same is true of the itemized account of the sale of the car of cauliflower, and said original itemized account of the sale of said car was introduced and read in evidence without any objection whatever being made to it. Appellant by no assignment briefed, nor proposition, contends there was no evidence of the market price on the New Orleans market and that the cauliflower sold at said price, but does contend there was no competent evidence thereof, and its only effort in its brief is directed to showing the evidence on this phase of the case was erroneously admitted, and therefore incompetent and should have been disregarded by the trial court. This would certainly be a very unfair course for the trial court to pursue. If the evidence upon this phase of the case was not admissible, appellant should have objected to it when offered, and assigned error to the action of the court in admitting same. Where the trial court erroneously admits evidence over proper objections, error should be urged to his so doing, and not that he erred in refusing to ignore same and instruct a verdict or grant a new trial. The court found that the gross amount realized by the plaintiff from the resale of said car was $512.21, and that the expense of said sale was $420.27, leaving a net to plaintiff of $91.94. No objections are shown to these findings. This proposition should be overruled.

Under its twelfth assignment, appellant contends the court erred in admitting in evidence, over its objection, the report of the government inspector as to the condition of said car of cauliflower. The record discloses that after appellant refused to accept said car, the government inspector at Dallas, at request of appellee, inspected said car and sent his report, or a copy thereof, to appellee in California. Interrogatory No. 77 to the witness Seifert was as follows: "If you state that it was inspected by United States government inspector, then please state whether you have the original of that inspection certificate." To which the witness answered: "We have." Interrogatory No. 78 was: "If you state that you do have the original of that inspection certificate in your possession, then hand it to the notary and have him mark it `Exhibit No. 10' and attach it to your deposition and make it a part of your answer to this question." To which the witness answered: "It has been done." Appellant objected to the above two interrogatories and answers to same, but no objection was made to the government inspector's report itself, and it was introduced and read in evidence without any objection whatever to its being so introduced. There is no merit in this assignment.

No reversible error is shown, and the judgment of the trial court should be affirmed.