Kincannon & Gaines v. Independent Cotton Oil Co.

RICE, J. During the fall of 1913, appel-lees, who were conducting a cotton seed oil mill at Bruceville, Tex., entered into a contract with appellants whereby they agreed to furnish them a certain amount of hulls and prime cotton seed meal for the purpose of fattening 432 head of cattle for market. And this suit is brought by appellants against said Oil Company, claiming failure on their part to comply with said contract, alleging that they had furnished unsound and inferior cotton seed meal and hulls, whereby said cattle failed to put on as much flesh as they would have done had said contract been complied with, and sought recovery of damages alleged to have been occasioned by such failure. Appellees, after a general denial, replied that appellants had full knowledge of the quality of hulls and meal as furnished for the purpose of fattening said cattle, and before the contract was entered into appellants sampled the meal and fed it to their cattle with a view of determining whether or not it would be satisfactory; that, after the execution of the contract, appellants, with full knowledge of the quality of the meal and the effect it was having upon their cattle, voluntarily continued to use the same. Appellees further allege that if the meal and hulls were unsound or inferior, as claimed by appellants, that they could have procured other meal and hulls from other sources, whereby they could have lessened their damages, hut failed to do so. They also plead that during the time the cattle were being fed there was an unusual spell of wet weather, and the lot in which the cattle were kept had become full of mud and water, and so continued for several weeks, and that if the cattle were damaged it resulted from such condition of the pens. The case was submitted on special issues, in response to which the court rendered judgment in favor of appellants for the sum of $180, from which judgment this appeal is prosecuted. While numerous errors have been assigned, it is only necessary, in our judgment, to discuss the sixteenth assignment, which complains of the failure of the court to render judgment in behalf of appellants for the sum of $1,156.90, which they claim was the loss sustained on the 432 head of cattle, at an average of 40 pounds per head, at the market price of $6.70 per hundred weight. The jury-found that appellees had failed to furnish the quality of meal contracted for by them, and in consequence thereof the cattle weighed 40 pounds less at the time of marketing than they would have weighed had the contract been complied with. It is unquestionably true that appellants made out a prima facie case under this finding of the jury, and were entitled to recover for the loss sustained. ■See Houston Cotton Oil Co. v. Trammell, 72 S. W. 244-47; Houk v. Berg, 105 S. W. 1176; Knight & Co. v. Southern Pacific Co., 41 Tex. 406-413. Appellees, however, eon880 lend that as the evidence shows and the jury found that appellants had knowledge of the inferior quality of the feed within 30 days after the cattle were placed in the pens, and voluntarily continued to use the same, that they were only entitled to recover the difference in the cost between the feed so furnished and what it would have taken to have obtained proper and requisite feed in lieu thereof. We think this doctrine would not apply in the instant case, for the reason that it appears from the evidence that upon complaint to appellees as to the inferiority of the meal and hulls, that they represented the same to be sound and good and insisted upon the use of same by appellants; therefore appellants were justified in relying upon their warranty and continuing their use. But, even if we are mistaken in this, still we think the burden was upon appellees to show that appellants, at reasonable expense, could have procured other and sufficient feed upon which to fatten the cattle, and also to show the difference in price of the feed actually furnished and the cost of obtaining other good and satisfactory meal and hulls, and, the evidence and verdict failing to show this with sufficient definiteness, appellees cannot complain. Again, appellees claim to have furnished to the director of the Texas Agricultural Experiment Station a sample of the feed in question, which was analyzed by him, and found to be suitable for feed purposes; it is contended on their part that they were not liable in a suit for damages at the instance of appellants, basing their contention on articles 5891: to 5900 of title 92, vol. 4, of Vernon’s Sayles’ Revised Civil Statutes. Notwithstanding the provisions of these articles, appellees were responsible upon their warranty, and having sold the feed in question, warranting the meal to be sound and of prime quality, cannot now escape liability by reason of their compliance with the statute referred to; for which reason we overrule their cross-assignment complaining of this question. As the court erred in failing to sustain the sixteenth assignment, if becomes our duty to reverse the case, and here render such judgment as the trial court should have rendered in behalf of appellants, to wit, for the sum of $1,150.80, this being the total amount of loss sustained on 431 head of cattle basing same at 40 pounds each at $6.71 per hundredweight, as found by the jury; and it is so ordered. Reversed and rendered.