K. Tideman Co. v. McDonald

Not being able to agree with my associates in the disposition of appellants' motion for a rehearing in this cause, I hereby file the following dissenting opinion:

After a careful consideration of appellants' motion for a rehearing, the writer is of the opinion this court was in error in affirming the judgment of the trial court, and that this motion should be granted and the judgment of the trial court reversed, and the case remanded on error pointed out in appellants' propositions under their first assignment of error, in both their brief and motion for rehearing, as will hereinafter be set out.

The record discloses that S. McDonald and O. O. Brightman were cotton brokers, residing at Comanche, Tex.; that J. Ed Brown was a cotton buyer at Waco, engaged in buying cotton at Waco for appellants K. Tidemann Co.; that J. Ed Brown was acquainted with O. O. Brightman, and had bought cotton from him during previous cotton seasons, but that he was not acquainted with appellee, S. McDonald, and had never had any dealings with him; that on October 8, 1920, some one at Comanche called J. Ed Brown at Waco and proposed to sell him 100 bales of cotton, and J. Ed Brown told said party he would take said 100 bales of cotton at the price agreed upon over the phone. As a matter of fact, it was appellee talking with J. Ed Brown, but J. Ed Brown testified, in substance, that he understood the party to say his name was Brightman, that he thought he was talking to Brightman. Another witness, who heard Brown talking, testified Brown called the party he was talking to "Brightman." This conversation occurred on Friday afternoon. After this conversation, J. Ed Brown mailed a confirmation of said purchase of 100 bales at the price agreed upon to O. O. Brightman, at Comanche. Appellee testified that in said conversation he told Brown his name was S. McDonald. The next morning, Saturday morning, when O. O. Brightman received the confirmation of the purchase from J. Ed Brown, he (Brightman) called up J. Ed Brown and told him about receiving such confirmation, and told Brown he had not sold him any cotton, and Brown insisted he had, and finally said he had bought 100 bales from some one at Comanche, and that he thought it was Brightman. In the afternoon of the same day, Saturday, October 9th, appellee called up Brown and proposed to sell him another 100 bales, but Brown refused to buy, and McDonald then said he had not received the confirmation for the 100 bales he sold Brown the day before, and Brown replied that he had not bought any cotton from him, and he was not going to take it, etc.

Appellee brought this suit, and alleged that —

"On October 8, 1920, the plaintiff * * * sold, over long-distance telephone, to defendants herein * * * 100 bales of cotton; that thereafter the defendants * * * wholly without cause failed and refused to accept said cotton or comply with the terms of said sale, and notified plaintiff that he would not accept said cotton," etc.

Appellee sold the cotton on October 13th at a loss, as he claims, of $1,000, for which he sought to recover and did recover $975. The defendants interposed a general denial. The court charged the jury in general terms:

That, if they "believed from the evidence that plaintiff, on October 8, 1920, sold, over long-distance telephone, to defendants, 100 bales of cotton, and further find that plaintiff was ready, able, and willing to deliver said cotton, and that defendants failed and refused to accept same, and further find that plaintiff sold such cotton on October 13, 1922, on a declining market, then find for plaintiff the difference between the market value of such cotton at the time plaintiff sold same to defendant on October 8, 1920, and the market value on October 13, 1920, and such difference, if any, will be your verdict."

The appellant requested the following special charge:

"You are instructed that, if you find and believe from the evidence that the defendants, acting by and through their agent, J. Ed Brown, entered into the contract as alleged by plaintiff under a mistake as to the party with whom he was dealing, then and in that event your verdict will be for defendant."

This special charge was refused, and its refusal is made the basis of appellants' first assignment.

Appellants' first proposition of law, applicable to this case under the above assignment, is:

"Where a party enters into an apparent agreement with another by long-distance telephone, without coming in personal contact with him, believing him to be another person, there is no meeting of minds, and therefore no binding agreement."

This undoubtedly is a sound proposition of law. It is elementary, in order to make an enforceable contract, there must be a meeting of the minds of the contracting parties as to the identity of the parties, the subject-matter of the contract, and the terms thereof. A party has a right to determine with whom he will contract, and another party, by reason of failure of identification, cannot enforce an apparent agreement where the first contracting party thought he was contracting with another and different person. J. Ed Brown knew Mr. Brightman, had dealt with him before, was willing to buy 100 bales of cotton from him, and thought he was buying from Brightman, but said he would not have bought from appellee, and as soon as he learned appellee, and not Brightman, was the party he talked to over the phone, he promptly repudiated the alleged agreement. It is immaterial what his reasons were for not being willing to contract with appellee. He was free to determine with whom he would contract, without any apology or explanation to any one. As I understand, my associates agree to the correctness of the above proposition of law. Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am.Rep. 9; Jones v. Chicago, B. I. Railroad Co., 102 Neb. 853, 170 N.W. 170; 13 C.J. 378.

The evidence was almost sufficient to establish as an uncontroverted fact that J. Ed Brown, in said telephone conversation, thought he was talking to O. O. Brightman, and thought he was buying 100 bales of cotton from Brightman, and had no thought or intention of buying any cotton from appellee. This probably was a question of fact for the jury, and, if so, was the only question of fact in the case in determining the liability of appellant, and if answered favorably to appellant, would have required a judgment in his favor. The general charge of the court wholly ignored appellant's defense of mistaken identity of the party he talked to over the telephone, and, standing alone, really amounted to a peremptory instruction for appellee. Appellant's special charge No. 3. aptly and correctly presented the law applicable to appellants' defense of mistaken identity, and should have been given. To refuse to give this special charge in connection with the main charge was in effect to deprive appellant of his defense, and was reversible error. But the majority of this court say:

"Appellants did not in their answer claim they would not have dealt with appellee, or that they had been in any way injured, or that they were mistaken in the identity of the parties, and did not allege any facts that would justify them in failing and refusing to carry out the contract which their agent admittedly made. There is no pleading or evidence of any fraud on the part of appellee in his dealing with appellants. Appellants, after the evidence was closed, for the first time raised the defense of mistaken identity. * * * It was necessary and incumbent upon them to allege and prove same. An affirmative defense must be pleaded and proved." If appellants did not make any contract with appellee, as the record tends to show, It is wholly immaterial whether or not they would have dealt with him, or whether or not they would have been injured by assuming to carry out a supposed contract they did not make with him, and it was certainly not necessary to allege facts to justify them in refusing to carry out a supposed contract they did not make, or to plead or prove fraud on the part of appellee as an excuse for not performing a supposed contract they had not made. The error the majority of this court has fallen into is in assuming that the contract was made as alleged by appellee. For instance, they say:

"If appellants desired to avoid the contract which they had made because of mistaken identity, it was necessary and incumbent upon them to allege and prove same. An affirmative defense must be pleaded and proved."

This is all true in cases where it is admitted a contract has been made and the effect of same is sought to be avoided, but this rule of law is wholly inapplicable to this case. In this case, the record tends very strongly to show that one of the essential elements of a contract was wholly lacking, and by reason of which no contract was made with appellee; in other words, that the phone conversation never rose to the dignity of a contract. Appellee alleged, in substance, that on October 8, 1920, he sold 100 bales of cotton to appellant, stating price, place of delivery, etc. This was equivalent to an allegation that on October 8, 1920, he entered into a contract with appellant, by the terms of which he sold appellant 100 bales of cotton, etc. Appellant interposed a general denial, which required appellee to prove his contract, and authorized appellant to introduce any evidence that tended to show such contract was not made. On the trial appellant introduced his evidence, without any objection to its admissibility that shows almost conclusively that in the telephone conversation appellant was intending to and thought he was making a contract with Brightman, and had no knowledge that he was talking to appellee or intention to talk to him. In other words, appellant's evidence tends to show that appellee had no contract with appellant, because one of the essential elements of a contract was lacking. This evidence was admissible under the general denial. Altgelt v. Emilienburg, 64 Tex. 150; Martin v. Mitchell, 32 Tex. Civ. App. 385, 74 S.W. 565; Hardin v. St. L. S.W. Ry. Co. (Tex.Civ.App.) 88 S.W. 440; Moody Co. v. Rowland,100 Tex. 363, 99 S.W. 1112; Floresville v. Refining Co.,55 Tex. Civ. App. 78, 118 S.W. 194; G., H. S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534; McCabe v. Farrell,34 Tex. Civ. App. 36, 77 S.W. 1049; Woolley v. Canyon (Tex.Civ.App.)159 S.W. 403; Colorado Southern Ry. Co. v. Rowe (Tex.Com.App.)238 S.W. 908; Olsen v. Collins, 75 Neb. 749, 106 N.W. 784; McGill v. Hall (Tex.Civ.App.) 26 S.W. 132; volume 11, Cent. Dig. § 1726. It will be noted the question here involved is not the admissibility under the general denial of the evidence of the mistaken identity of the party to whom Brown talked over the phone, for this evidence was admitted without any objection, and, this evidence having been admitted without objection, and being before the court and jury, it was the duty of the trial court to give effect to same by giving to the jury appellants' special charge No. 3, and the case should be reversed for his failure to give this special charge.