Lennox v. Texas Farm Bureau Cotton

I think the conclusion reached when the record was first before this court, that there was no error in the judgment so far as it was in appellee's favor on its cross-action against appellants, was correct. Having reached that conclusion, this court should (I now think) have affirmed that part of the judgment and have remanded the case to the court below for a trial only on appellants' claim for damages. Rule 62a for Government of Courts of Civil Appeals; Dutton v. Miller (Tex.Civ.App.) 11 S.W.2d 551; Miller v. Wolff Mfg. Co. (Tex.Civ.App.)225 S.W. 212; Durham v. Scrivener (Tex.Civ.App.) 259 S.W. 606. Believing this court erred when it did not do that, I do not agree with the majority that appellee's motion should be in all respects overruled. I think, instead, it should be granted, so far as it complains of the action of this court in the respect stated, and that the judgment rendered here, so far as it reversed that part of the judgment, should be set aside, and that part of the judgment of the court below affirmed instead.

The opinion now entertained by the majority, it appears from Judge HODGES' opinion overruling appellee's motion, is that there was error in the judgment in appellee's favor on its cross-action, in that there was an issue for determination by the jury as to whether appellants "acquired" the 1,664 bales of cotton referred to in said opinion, within the meaning of that word as used in the marketing agreement. I think there was no such issue, in view of allegations as follows in the pleadings of appellants on which the trial was had:

"Now come H. H. and C. D. Lennox, and, leave of the court being first obtained, file the following trial amendment, so that in addition to the allegations of paragraph 18 of plaintiffs' first amended first supplemental petition, after the words `and should be dissolved' the following allegations are made, to wit, that at the time said injunction was so issued against them they owned or had liens upon and now have and did have prior to January 1, 1926, in hands for sale either jointly or severally 1,590 bales of cotton weighing in the aggregate 806,973 pounds; and that prior to January 1, 1926, they became sole owners of said 1,590 bales, that in addition to the said number of bales owned and acquired by plaintiffs prior to January 1, 1926, they owned and were interested in, and in the actual possession of with authority to sell, which had been delivered to them prior to January 1, 1926, the following list of cotton, to wit: W. L. Gaines, 20 bales, weighing 10,542 pounds, all of which was at the Clarksville storage in the name of Lennox Lennox prior to January 1, 1926, except one bale of the 1925 crop which was delivered in 1926 and weighed 511 pounds; Jack Curlee, 9 bales of cotton, weighing 4,755 pounds, all of which was at the Clarksville storage in the name of Lennox Lennox prior to January 1, 1926, except one bale weighing 528 pounds, delivered to them on April 17, 1926; Tom Bales, 22 bales of cotton, weighing 11,356 pounds, was on said storage platform in the name of Lennox Lennox prior to January 1, 1926; J. L. Shirley, 20 bales of cotton on said platform in the name of Lennox Lennox, weighing 10,474 pounds; Ambrose Jones, one bale of cotton, delivered to Lennox Lennox on December 9, 1925, weighing 463 pounds; E. B. Beard, three bales of cotton, weighing 1,268 pounds, all of which were produced in 1925 and delivered to Lennox Lennox and acquired by them prior to April 1, 1926; that the interest owned by plaintiffs in the foregoing 74 bales of cotton was, and is, an undivided one-fourth interest in 31 bales, aggregating 15,760 pounds, and an undivided one-half interest in 43 bales, of said list of 74 bales, aggregating 22,031 pounds; that against the balance so owned by said tenants the plaintiffs H. H. and C. D. Lennox owned and held and still own and hold valid, subsisting and unsatisfied landlords' liens and chattel mortgage liens against the respective tenants as follows, to wit: W. L. Gaines the sum of $1,219.78: Jack Curlee the sum of $413.82; J. L. Shirley the sum of $1,431.07; Ambrose Jones the sum of $390.00; Tom Bales the sum of $1,590.07; that the aforesaid cotton was pledged and delivered to plaintiffs with the understanding and agreement that same should and would be sold, and plaintiffs were authorized to sell same when plaintiffs' undivided interest therein should be sold and the proceeds from the sale of their undivided interest therein be applied on their respective debts and accounts."

It seems to me that the allegations of appellants that they "became the sole owners" of 1,590 of the 1,664 bales of cotton and that "in addition to the said number of bales owned and `acquired'" by them they "owned and were interested in and in the actual possession of with authority to sell" the other 74 bales of the 1,664 bales, conclusively showed that appellants had "acquired" the cotton, and relieved appellee of the burden of proving the fact. If such was the effect of the allegations, if there was a reason why, having "acquired" the cotton, appellants nevertheless should not be required to comply with the terms of the marketing agreement as to the delivery of the cotton or a part thereof to appellee, the burden of showing it, and the part, if less than the whole, certainly was on appellants and not on appellee.

The provision in the marketing agreement entitling appellee to the remedy of specific performance might easily become meaningless, if construed as the majority have determined it should be construed. A grower who had become the owner by purchase of hundreds of bales of cotton could successfully defend against the association's suit to compel him to deliver the cotton to it by proof that he owed a trivial part of the purchase money thereof, payment of which was secured by a mortgage thereon. Indeed, the effect of the ruling of the majority, it seems to me, is to relieve the grower of proving even that much, and to require the association, in proving that the grower had "acquired" cotton purchased by him, which it claimed to be entitled to, to show that the cotton was wholly unincumbered by liens of any kind. As the writer views it, such a requirement is unreasonable and is not warranted by any principle of law