Early-Foster Co. v. A. P. Moore's Sons, Inc.

DEVY, J. (after stating the facts as above). Error is predicated upon the refusal of the court to give both the requested (1)special charge peremptorily instructing the jury to return a verdict in favor of the defendant, and (2) the special issue as follows: “Did the plaintiff agree to deliver in Detroit, Mich., the car of sugar described in the plaintiff’s petition?” The propositions relied upon by the appellant are: (1) The evidence without conflict showing that the appellee shipped the car of sugar to its own order Detroit, Mich., notify the Polish Co-operative Grocery Company, the title and possession of the sugar never at any time passed out of the appellee. (2) Where a car of sugar was purchased f. o. b. Chicago, and by mutual agreement the destination was changed to Detroit, and there were no words or circumstances which would change the usual and. ordinary meaning of the term'f. o. b., then as a matter of law, the place of delivery was Detroit; or (3) If, as a matter of law, the term f. o. b., ■Chicago, which was afterwards changed to Detroit by mutual agreement, as used in the purchase, does not fix the place of delivery, then the place of delivery intended by the parties was a question for the jury to determine under the agreement and all the circumstances. [1, 2] The pleadings and evidence presented an issue of fact of whether or not the Early-Foster Company (1) agreed to buy outright the car of sugar in question, or (2) was acting as a broker for A. P. Moore’s Sons in the negotiations with reference to the car of sugar. There is sufficient evidence, it is conceded, -to authorize the jury to determine that the parties made a contract of purchase and sale of a car of sugar. And the determination of whether or not the court erred in refusing to give the requested special charges is solely dependent upon the question of where, under the contract between the parties, the sugar was to be delivered and the title to it passed to the buyer. Therefore if, under the contract, the appellee, as seller, was to deliver the sugar at Chicago, after-wards changed to Detroit, and the sale was not complete until the delivery was made, or if the place intended by the parties at which delivery and the passing of the title were to be consummated was a question of fact for *303 decision, by tbe jury, then the contention of appellant should be sustained. But if there was, as alleged, a consummated sale of the sugar with delivery at Tyler, Tex., then the ruling of the court should be sustained. And in view of the evidence it is believed that the court did not err in refusing to give either of the two special charges; and the proposD tion' of appellant cannot, it is concluded, be sustained. The contract of the parties was an oral one, made on July 5, 1920, and is contained in the testimony of Mr. Cambrón included in the statement above. The evidence indicates with reasonable clearness 'that the Early-Foster Company wanted to buy 500 sacks of sugar in “a rolling car,” or car ready for movement, for resale to either “the Chicago Grocery Company” or “a Chicago grocery company” at Chicago. A. P. Moore’s Sons agreed to sell the 500 sacks of sugar on a loaded or “rolling car,” which hdd been by them obtained from the Imperial Sugar Company at Sugarland, Tex., and which was by the Imperial Sugar Company to be “shipped” to A. P. Moore’s Sons from Sugarland to Tyler on “to-morrow” or “the day following,” which was July 6, 1920. It was stipulated that the price of the sugar was ’“twenty-four and one-half cents p°r pound, net cash, f. o. b. Chicago.” The circumstances revealed in the evidence show, in point of fact, that the term “f. o. b. Chicago” was used and intended only to fix the price of the sugar, and no circumstances appear during the negotiations indicating a contrary intention. And the contract specifically provided that the seller was to receive payment of the purchase price immediately upon presentment of the “sight draft.” The further undisputed evidence shows that on “the day following,” which was July 6, 1920, the ear of 500 sacks of sugar was “shipped” by -the Imperial Sugar Company from Sugar-land consigned to A. P. Moore’s Sons, Tyler, Tex., and that the car was on July 7, 1920, while in transit to Tyler, by the appellee, on instructions of appellant, diverted to the Polish Co-operative Grocery Company of Detroit, the party to whom appellant had by its own independent contract resold the sugar. Thus in the facts the appellee had sacked and placed the sugar in “a rolling car,” or car ready for movement, on “the following day.” This was in accordance with the agreement. On July 7, 1920, the appellant directed the appellee to “ship” the sugar, to Detroit to the party to whom it had resold it. And acting on these instructions, appellee shipped the sugar as directed and drew “the sight draft” for the payment to it of the purchase price of the sugar. Drawing the sight draft was in accordance with the agreement that appellee should be paid the purchase price immediately on presentment of the draft. There was no agreement that ap-pellee should receive payment of the purchase price on delivery at Chicago or Detroit, and there was no agreement that appellee should forward or deliver the sugar to the purchasers under appellant. When appellant directed the car of sugar to be forwarded from Tyler to Detroit to its own purchaser of the sugar, and appellee complied with such instruction, there remained nothing further for appellee to do but to draw the draft in payment of the purchase price. In these facts there was, it is concluded, conclusively shown a consummated sale of the sugar at a fixed price, with payment of the purchase price immediately on presentment of the draft. The effect of the facts is to show a delivery and acceptance at Tyler, Tex., so as to pass the title to the sugar, as between the parties, to the appellant. And on the authority of the Supreme Court — cases below— which we are required to follow, there being no agreement to deliver the sugar at Chicago or Detroit, then delivery of the same to the railway company, as done in this case, as a matter of law, constituted a delivery and passed the title to the sugar to the appellant, the buyer, although the seller may not have parted with control over the sugar until the draft was paid. Robinson & Martin v. Ry. Co., 105 Tex. 185, 146 S. W. 537, as can be seen from the authorities below. The stipulation “twenty-four and one-half cents net cash. f. o. b. Chicago” does not necessarily, as a matter of law, fix the place of delivery at Chicago. 23 R. C. L. § 161, p. 1338; 35 Cyc. pp. 173, 174; Burton & Beard v. Nacogdoches Crate & Lumber Co., 161 S. W. 25; U. S. v. Andrews & Co., 207 U. S. 229, 28 Sup. Ct. 100, 52 D. Ed. 185. [3] It is insisted by the appellant under proper assignments of error that the court erred in dismissing and in not allowing it to implead the railway companies as parties to the suit. Appellant filed a cross-action against the railway companies transporting the car of sugar from Tyler to Detroit, Mich., for negligent delay in transportation of the sugar, and moved for a continuance of the suit for the purpose of having citation served upon the defendants in the cross-action. The court, upon the verbal motion of the appellee, entered an order dismissing the cross-action against the railway companies, and overruled the motion to continue the cause. The appellant’s cross-action against the railway companies is entirely separate and distinct from that of the appellee against the appellant, and the appellee' had no interest in the former. A judgment in the suit of appellee against the appellant adjudicating that appellant -was the owner of the sugar shipped would be binding against appellee, and would be admissible against the railway companies in a suit against them by appellant as showing full title to the sugar in appellant. A judgment therefore in favor of appellant against the railway companies for *304 damages in the shipment would fully protect the railway companies. The railway companies, then, were not necessary parties to the suit under the provision of article 1848, R. S. The appellant having the right to bring an independent action against the railway companies, as it has, no injury resulted to appellant on account of the dismissal of the cross-action. It is therefore concluded that the court, in the exercise of his discretionary power, did not err in the rulings complained of. Keel & Son v. Gribble-Carter Grain Co., 143 S. W. 235; Carder v. Johnson, 109 S. W. 944; Andrews v. Rice, 198 S. W. 666. We have considered the remaining assignments of error, and conclude that each of them should be overruled as being without injury to the appellant. The judgment is affirmed. Footnotes [1] <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes