Panhandle Grain & Elevator Co. v. Dowlin

HALL, C. J. Defendant in error, Dowlin, sued the plaintiff in error, also the Panhandle & Santa Fé Railway Company, and the Chicago, Rock Island & Gulf Railway Company, in the county court of Randall county, alleging, in substance, that he sold to the grain company 78,546 pounds of wheat, for which the said grain company agreed to pay him the sum of $2.02 per bushel; that he delivered said wheat to the Panhandle & Santa Fé Railway Company at Canyon, Tex., which conipany accepted and agreed to deliver the same to the grain company; that the Panhandle & Santa Fé Railway Company thereafter delivered said wheat to the Rock Island & Gulf Railway Company on its transfer at Amarillo; that the cars furnished by the Panhandle & Santa Fé Railway Company were old, the doors were old and leaky, and upon arrival of the wheat at the elevator of the grain company there was left only 72,-480 pounds of the shipment; that he was unable to say whether the loss occured while in possession of the Panhandle & Santa Fé Railway Company or the Chicago Rock Island & Gulf Railway Company, but there was a loss of 6,066 pounds of wheat between the time it was delivered to the Panhandle & Santa Fé Railway Company and its delivery to the Panhandle Grain & Elevator Company; that the wheat had been sold to the Panhandle Grain & Elevator Company for $2.02 per bushel, whereby defendant had been damaged in the sum of $224.22; that said amount was long past due and unpaid, and that said carriers, though often requested, had failed and refused to pay the same or any part thereof. In the alternative defendant in error alleged that if he svas mistaken in charging that said 6,066 pounds of wheat was lost by said' carriers, then, as heretofore set out, he alleges he sold 78,546 pounds of wheat to the Panhandle Grain & Elevator Company, and that it had agreed and promised to pay him $2.02 per bushel; that it had paid him for all of said wheat except 6,066 pounds, which was of the value of $204.23, and although past due and unpaid and though often requested, the grain company hits failed and refused to pay it or atíy part thereof. He prayed for judgment against the carriers and in the alternative that, if .. the court should find the carriers had delivered the wheat to the grain company, then he prayed for judgment against the grain company in the sum of $204.22. The Chicago Rock Island & Gulf Railway Company alleged that the full amount of wheat which had been shipped and delivered to it for transportation was duly transported and delivered to the Panhandle Grain & Elevator Company. The grain company alleged that the car of grain in question was placed at its elevator in Amarillo- and unloaded and that they accepted and paid for 72,480 pounds of wheat, and payed for judgment against the first carrier for the loss of 6,066 pounds. It alleged settlement in full for all the wheat it had received. To each of these pleadings the defendant in error filed general denial and pleading other facts- not necessary to be stated in this connection. [1-3] Under several propositions the plaintiff in error insists that the pleadings do not support the judgment in that it is not alleged that more than 72,480 pounds of grain were delivered to it. In the argument upon these propositions it is further urged that the pleading does not state when the amount was due under the contract. There being no proposition to this effect, the only question to be considered' is the sufficiency of the pleadings upon the issue of delivery. No exceptions were urged to any of the pleadings of the defendant in error, and the error is presented here as fundamental. If a fact necessary to be proved to sustain a recovery on the part of the plaintiff be neither alleged in the [876] petition nor fairly inferable from facts alleged, such petition is subject to a general demurrer. Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015. It is not necessary for plaintiff to allege matters set up in the pleading of the opposite party. Reference to the above brief summary in part of the pleadings will show that the objection urged under those assignments is without merit. Defendant alleges the loss of a certain number of pounds “between the time it was delivered to the Panhandle & Santa Eé Railway and its delivery .to the Panhandle Grain & Elevator Company.” This is not a positive allegation of delivery of the entire shipment. He pleaded in the alternative that, if the loss w.as not chargeable to the carriers, then that he have judgment against the grain company for the full amount of the balance due. Davis alleges the delivery of 77,900 pounds to him and its delivery to the Chicago, Rock Island & Gulf Railway. The Chicago, Rock Island & Gulf Railway pleaded the delivery to the grain company of all the wheat which had been delivered to it, and the grain company alleged that only 72,-480 pounds had been received from the Chicago, Rock Island & Gulf Railway Company. This allegation was denied by defendant in error and was sufficient to admit proof of delivery and of whatever amount had been delivered. Fitzhugh v. Conner, 32 Tex. Civ. App. 277, 74 S. W. 83. Plaintiff in error alleged the payment of all that was due, and this allegation is denied by supplemental petition. The pleadings of the grain and elevator company are not as full as they probably should be, but because of facts which may reasonably be inferred from those pleaded, as well as deficiencies being supplied by pleadings of the opposite parties, we overrule the contention. Southern Commercial & Savings Co. v. Combs (Tex. Civ. App.) 203 S. W. 1169; rule 62a (149 S. W. x). [4-6] Plaintiff in error defends in part by alleging an accord and satisfaction by reason of the acceptance by defendant in error of a check which contained this notation, “Bal. 83336 Trans M. P. 37412.” This check was in the sum of $440.16, and it is insisted that because Dowlin accepted the check as second payment upon the amount due it constituted and' accord and satisfaction, and that he is estopped from claiming any more. We doubt if the notation on the cheek is sufficient of itself to show that it is payment in full for any balance due. The insistence is that, because defendant in error did not seek to set aside the accord and satisfaction by pleading some equitable ground, the court should have directed a verdict for plaintiff in error. As we understand the issues, Dbwlin did not attempt to set aside an accord and satisfaction but simply denies that there had been any such agreement, nis denial placed the burden of proof upon plaintiff in error to establish such defense. Thé evidence is conflicting upon the issue, but it is sufficient to support the finding that there was no accord and satisfaction. The allegation of an accord implied an agreement (Hunt on Accord and Satisfaction, § 1), as well as a prior controversy. Dowlin pleads that, at the time he. accepted the cheek, the grain company’s officer assured him that only 72,480 pounds of wheat had been received; that the grain company’s scales were correct, and he asserts that he did not release the company from the payment of any balance that might be due him, and that there was no such agreement. An accord and satisfaction does not operate as a bar to the recovery of any sums arising from matters not contemplated by the agreement. X C. J. 524. The judgment decrees that the defendants against whom no recovery was awarded shall recover their costs of the plaintiff, and the costs must be taxed accordingly. [7] The court submitted the issue: “Did the plaintiff Dowlin know when he accepted the chock for $440.16 from the elevator company that it contained a notation ‘BaL Due’?” This issue does not correctly state the notation, and as the issue is submitted it is more favorable to plaintiff in error than it was entitled to have under the facts. So the error, if any, is harmless. [3-10] The court should charge the jury in accordance with the interpretation of the pleadings apted upon by the parties, when the allegations are not clear and no demurrers have been urged. Blum v. Whitworth, 66 Tex. 350, 1 S. W. 108, and we think this has been done. Plaintiff in error has favored us with an instructive and exhaustive brief upon the sufficiency of the pleadings as against general and special demurrers, but no demurrers were urged in the trial court. No rulings were made upon the sufficiency of Dowlin’s pleadings, so the ease is before us and must be considered as presenting only fundamental error. In such state of the record the propositions call into review the- entire record and require us to examine the pleadings of all parties. Uncertainty and indefiniteness in a pleading must be 'raised by special demurrer, and if raised by suggestion of fundamental error after appeal, and defects in the pleadings off the plaintiff which have been supplied or cured by affirmative allegations in the pleadings of any of the defendants in error, the error is cured, and in determining this matter we must take into consideration the general denial pleaded by plaintiff in his supplemental petition. G. C. & S. F. Ry. Co. v. Anderson, 76 Tex. 244, 13 S. W. 198; Willis v. Lockett (Tex. Civ. App.) 26 S. W. 419; Gaston v. Wright, 83 Tex. 282, 18 S. W. 576; Barnes v. Patrick, 105 Tex. 146, 146 S. W. 157. [11-13] Under several propositions the action of the court in permitting certain -witnesses for the carriers to testify as to what [877] their records show with reference to inspection and condition of the cars is attached. This, of course, is a collateral inquiry, and all the testimony simply bears upon the ultimate fact of where the wheat was lost after it was first loaded in the car. A witness has the right to refresh his memory from original records, but aside from this testimony the evidence is sufficient to sustain'the finding of the jury as to the amount of loss charged to each defendant. Where cars leah and scales are subject to suspicion and wheat has been transferred from one car to another, there is, of course, great difficulty in fixing the exact amount of loss chargeable to the several parties at fault, but difficulty in determining this matter is not sufficient grounds for setting aside the finding of jurors who heard all the testimony and are better able to make an estimate than an appellate court. It is true that the judgment doVs not in terms dispose of all the issues as between ail the parties, but we think it is sufficient to meet the requirements of the rule laid down by the Supreme Court in the following and othei cases. Hermann v. Allen, 103 Tex. 382, 128 S. W. 115; Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161; Waggoner v. Knight (Tex. Com. App.) 231 S. W. 357. [14,15] The court excluded the testimony of Hunter, an officer of the grain company, to the effect that, because of the delay in transporting the car by the Panhandle & Santa Eé Railway Company and because of its damaged condition upon its arrival at the grain company’s elevator, the loss resulted. If this evidence had been admitted it would not have shown any controversy between Dowlin and the grain company. On the contrary, its effect would have been to show that Dowlin had a cause of action against the carrier and not the grain company. Its exclusion, therefore, was not prejudicial. The question asked the witness Cannon, who was testifying as an expert, to the effect that if a loss of 40 pounds in reloading wheat from one car into another would indicate that either of the scales upon which the wheat had been previously and subsequently weighed was incorrect, was not a subject for expert testimony. [1B] Where there are several defendants in cases of this character pleading over against •each other, the matter of directing the order ■of argument is within the sound discretion of the trial court and its action will not be revised unless injury is clearly shown. LI 7,1B] Objection was made to oral evidence of several witnesses and to certain written evidence, presumably office records and scale tickets,. tending to show that the scales used by plaintiff in error varied materially in registering weights from the weights registered by other scales which witnesses had testified were accurate. The testimony was admissible at least in part, and the objection was to the whole of it. The accuracy of scales or any other machinery may be shown by comparing their operation with others of the same general character, which the evidence shows to be,accurate. G. C. & S. E. Ry. Co. v. Justin M. & E. Co. (Tex. Civ. App.) 168 S. W. 411. [19] Several of the propositions in the brief of plaintiff in error are either arguments or merely general statements of abstract rules of law applicable to any case in which such questions may be involved, and are insufficient. Anthony v. Hardin (Tex. Civ. App.) 175 S. W. 857; Henyan v. Trevino (Tex. Civ. App.) 137 S. W. 458; Texas, etc., Ry. Co. v. Middleton, 27 Tex. Civ. App. 481, 65 S. W. 378; Texas, etc., Ry. Co. v. Powell, 38 Tex. Civ. App. 157, 86 S. W. 21; 101 Tex. 662; G. C. & S. F. Ry. Co. v. Nelson (Tex. Civ. App.) 139 S. W. 81; Id., 108 Tex. 305, 192 S. W. 1056. A proposition should point out with certainty the specific error complained of, as shown by the record. Ross v. Moskowitz, 100 Tex. 434, 100 S. W. 768; M. K. & T. Ry. Co. v. Maxwell, 104 Tex. 632, 143 S. W. 1147; 61 Tex. Civ. App. 412, 130 S. W. 722; Estes v. Estes (Tex. Civ. App.) 122 S. W. 304. Believing that a proper verdict and judgment have been reached in the trial, the judgment is affirmed. Footnotes [1] <§m>For other oases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes [Q] — .TTni- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] ©=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes