Consumers' Fertilizer Co. v. J. M. Badt & Co.

WILLSON, C. J. Appellee J. M. Badt, a merchant engaged in business at Mt. Pleasant, under the name of “J. M. Badt & Co.,” bought fertilizer of appellant, agreeing to pay it therefor sums aggregating $404.68 less cost of carriage thereof from Shreveport, La., to Mt. Pleasant, Tex. The suit was by appellant to recover $114.58 as the part of the purchase price unpaid by appellee. The appeal is from a judgment denying appellant a recovery as sought by it, and in favor of appellee for costs. The contract covering the sale of the fertilizer was made January 25, 1909. It was in writing. Among other stipulations in it [227] was one as follows: “Settlement for all shipments is due on demand after their arrival, and any part not paid in cash is due in buyers’ notes, maturing October the 15th, November 1st, and November 15th, including 8 per cent, per annum interest after May the 1st. A discount of 8 per cent, per annum to May 1st will be allowed on cash payments.” Appellee claimed that the terms of the contract as to the time when the fertilizer was to be paid for had been so changed by a verbal agreement subsequently entered into between himself and appellant, through its manager, one Green, as to relieve him of the obligation to pay therefor on demand after he received the fertilizer, and as to bind him to pay therefor only after he had sold same. He further claimed that a portion of the fertilizer representing the sum unpaid of the purchase price remained in his hands unsold, and therefore that appellant was not entitled to a recovery against him as sought by it. It appeared that the fertilizer was shipped out of Shreveport January 26, 1909, and reached appellee a few days later. Appellee testified that a few days after he received same appellant made demand on him for a settlement in accordance with the terms of the written contract, and about May 1st renewed the demand. It was then, he claimed, that he and Green entered into the agreement changing the time for payment to be made by him for the fertilizer. His testimony with reference to the agreement with Green was as follows: “I called him up over the telephone, and told him I had some of the fertilizer on hand I had not sold, and that I was willing to settle for the amount I had sold, but that the Caddo people had never demanded of me to pay for fertilizer until I had sold it, and I thought he ought to do the same thing, and he' said all right, he would do as well by me as his competitors, and that I need not pay for the fertilizer until I had sold it. I have never sold all of the fertilizer, and have paid for all I sold. I have paid for every sack I have sold, and have the balance now in my warehouse, and I have tendered it to the plaintiff. * * * It is the custom to pay for fertilizer only when sold.” With reference to the same matter, Green testified as follows: “Some time after I had demanded a settlement for the fertilizer, defendant called me up on the telephone, and said, in substance, that the Caddo people had always waited till the 1st of May for settlement of the fertilizer sold, and carried the balance over till the 1st of the next May in open account without interest, and he thought plaintiff ought to do the same. I told defendant that, if the Caddo folks did that, plaintiff would too; that I would do as well by him as my competitors. I did not agree in that or any other conversation with defendant that he could hold the fertilizer on consignment, or as plaintiff’s property, and not pay for it until he sold it. The written contract is the only contract I made with defendant, except I did extend the time of payment or settlement as stated.” The suit was commenced after May 1, 1910. [1] It will be noted that, according to the testimony of both appellee and Green, the agreement reached over the telephone was one merely for an extension of the time when the fertilizer was to be paid for. The only difference between them was as to the time to which the extension should operate. According to appellee, it was until he sold the fertilizer; while, according to Green, it was until May 1, 1910. If it was until May 1, 1910, as claimed by appellant, then the balance unpaid was due when the suit was commenced, and the judgment should have been for appellant. If it was when appellee sold. the balance remaining of the fertilizer, and was binding on appellant, then the judgment was right, for it was undisputed that appellee had not sold part of the fertilizer. As appellee’s testimony was sufficient to support a finding that the agreement was that he need not pay for the fertilizer until he sold it, whether the judgment should be disturbed or not therefore depends upon whether it appeared that the agreement was binding on appellant or not. In Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 584, 29 S. W. 646, 30 S. W. 430, the payer of a note requested and was granted an extension of one week; he agreeing to pay within that time. In Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128, the parties to the note agreed upon an extension of 12 months. In the Bahn Case it did not appear that the payer had bound himself not to pay the debt before the expiration of the time of the extension agreed upon, or, if he should pay it before that time, nevertheless to pay interest to that time. The Supreme Court was of the opinion that it therefore did not appear that there was a consideration for the payee’s undertaking, and held he was not bound by the agreement. In the Phipps Case the court thought it did appear that the payer of the note had so bound himself, and therefore that there was a consideration for the undertaking on the part of the payee. [2] This case is like the Bahn Case in that it did not appear that appellee had bound himself not to pay for the fertilizer before he sold it, or, if he did, to pay interest on the purchase price to that time. As on the authority of that case (and Gibson v. Irby, 17 Tex. 174) it must be held that it did not appear there was a consideration to support appellant’s undertaking, it follows we are of opinion the judgment should be reversed. That the balance of the purchase price of the fertilizer remaining unpaid was $114.58, as claimed by appellant seems to have been established without dispute. Therefore the [228] cause will not be remanded, but judgment for that sum, and costs of the court below and of this appeal, will be bere rendered in favor Of appellant.