Moore-Seaver Grain Co. v. Blum Milling Co.

BARCUS, J. On April 7, 1922, appellee, over the telephone, purchased from the agent of appellant at Port Worth, Tex., 1,000 bushels of No. 2 red wheat at $1.52% per bushel. On the same day appellant, from its Kansas City office, mailed to appellee its written confirmation of said sale. On April 10, 1922, appellant delivered the ear of wheat in controversy to appellee Atchison, Topeka & Santa Pé Railway at Kansas City and prepaid the freight to Blum, Tex. It attached a bill of lading to the draft for $1,525 and drew on appellee for said amount. The • draft was paid and bill of lading taken up by appellee milling company before it had any opportunity to inspect the wheat. The car of wheat arrived at Blum, Tex., on April 18th, and when opened, appellee milling company’s witnesses testified the wheat was musty, had a bad odor, had weevils in it, and was totally nnsuited for grinding into flour. Appellee milling company brought this suit for $1,525, the purchase price of the wheat, against appellant and against appellees Atchison, Topeka & Santa Fé Railway Company and Gulf, Colorado & Santa Fé Railway Company, alleging that it bought 1,000 bushels of No. 2 red wheat from appellant at $1.52% a bushel for the purpose of using same in its milling business and grinding same into flour, and that the appellant had sold same to it for said purpose, and alleged that appellant had breached its contract in that the wheat when loaded on the cars at Kansas City was not No. 2 red wheat and same was not suited for use in milling purposes, and was when loaded on the cars in Kansas City and when it arrived at Blum totally worthless. It alleged that as soon as it discovered the condition of said wheat it tendered same to appellant and appellant had refused to accept same and return the money which it had received. The milling company further allege.d, if the wheat was in good condition when loaded at Kansas City, that by reason of the negligence of the railway companies it had been damaged while in transit. The railway companies filed general demurrers and general denials. The appellant filed a general demurrer, and for special answer alleged that it sold to appellee milling company 1,000 bushels of No. 2 red wheat, to be delivered by it to the Atchison, Topeka & Santa Fé Kailway Company at Kansas City, and that under the terms of the contract it was agreed that the wheat should be weighed and graded at Kansas City, Mo., by officials of said state and that the weights and grades of such grain as made by said officials should be binding and conclusive between the parties, and that the wheat it did deliver to said railway company was weighed and graded by the official inspector in Kansas City, as per said contract. Appellant requested an instructed verdict, which was refused, and it excepted. The cause was submitted to the jury on 24 special issues. The jury found that the wheat was not when delivered by appellant to the railway company nor at the time it reached Blum, Tex., No. 2 red wheat, and was not in good condition; that the difference in the case market value of No. 2 red wheat and that actually delivered on the Kansas City market and at Blum, Tex., was $1 per bushel; that the wheat when delivered to the railway company at Kansas City was not suitable for milling purposes; that the appellant did not deliver No. 2 red wheat at Kansas City, Mo., according to the Kansas City official weights and Kansas City official grades. The jury further found that the wheat was not damaged while in the possession of the railway companies. On the findings of the jury and additional findings by the court, judgment was rendered for appellee milling company against appellant for $1,000, and judgment was entered in favor of the Atchi-son, Topeka & Santa FS Railway Company and the Gulf, Colorado & Santa Fé Railway Company, appellees herein. No appeal was taken from and no complaint is made with reference to the judgment rendered in favor of the railway companies. Appellant presents a number of assignments of error. It will not be necessary to discuss each one separately. Appellant .contends that its general demurrer to plaintiff’s petition should have been sustained because plaintiff’s pleadings show a misjoinder of parties and causes of action, in that plaintiff seeks to hold appellant for the value of the wheat on the theory that it was worthless when delivered at Kansas City, and seeks to hold the railway companies liable because they so handled the wheat while in their possession that it was damaged to the extent that it became worthless. The appellant did *553 not, in limine, make suck defense in the trial court. The question of misjoinder of parties or causes of action cannot be raised by a general demurrer, and cannot be raised for the first time in the appellate court. Farmers’ National Bank v. Merchants National Bank (Tex. Civ. App.) 136 S. W. 1120; Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. 631, 131 S. W. 73; Gulf, Colorado & Santa Fé Ry. Co. v. Stewart (Tex. Civ. App.) 141 S. W. 1022; article 1906 Revised Statutes. Appellant complains of the action of the trial court in permitting the officers of ap-pellee milling company to testify as to the condition of the wheat at the time it reached Blum, Tex., because same was an effort to vary the terms of a written contract and because the condition the wheat was in when it arrived at Blum was irrelevant and immaterial and did not in any way tend to show the condition of the wheat when it was delivered to the railway company at Kansas City. The evidence shows that Martin, for the milling company, purchased a car of No. 2 red wheat over the telephone from Ferguson, agent of appellant, at Fort Worth, on April 7th. On the same day appellant wrote appellee as follows: “We hereby confirm sale to you to-day made by our Fort Worth office for 1,000 bushels^ of No. 2 red wheat, price $1.52% per bushel, immediate shipment over the A., T. & S. F. Railway, destination Blum, Texas. * * * Conditions and agreements set forth on the hack of this confirmation (or contract) are made a part hereof. Failure to take exceptions at once to any part of this contract shall be construed as an acceptance of the same by the buyer as embodying all- the terms of the sale.” There are a number of conditions printed on the back of the confirmation letter, the only one material in this case being: “Unless otherwise stated, all sales of grain are on Kansas City official weights and Kansas City official «grades existing at the time of delivery, which shall be conclusive between the parties hereto.” Martin testified that whefi he received the letter of confirmation he wrote the word “accepted” thereon and signed the Blum Milling Company’s name thereto and that it was the contract he and Ferguson had made. The car of wheat was shipped from Kansas City on April 10th. The acceptance of the confirmation from the milling company was not received by appellant until April 11th. At the time the car of wheat was loaded at Kansas City, C. M. Swearingen, an official grain inspector at Kansas City, inspected the wheat and certified to the fact that it was No. 2'red wheat. It is an established principle of law that “as men bind themselves, so shall they be bound.” It is not the province of courts to make contracts for parties or to vary the contracts which parties have made. Under the contract as made between appellee milling company and appellant, they obligated and bound themselves to sell and purchase' the wheat on Kansas City official grades and agreed that said official grades should be conclusive between them. While the record in this cause shows that the letter of confirmation was not received by appellant until after it had shipped the wheat, there is nothing in the record to show that the written contract was not the real contract as made. Where a parol contract has been partly performed and afterwards reduced to writing, the same rule with reference to varying its terms by parol testimony is applicable. 22 C. J. 1107. And when a parol contract is partly performed and then reduced to writing, it is presumed that the parol contract is merged into the written contract and becomes the sole expositor of the terms agreed on. Cable v. Foley, 45 Minn. 421, 47 N. W. 1135. The appellee milling company did not allege that the written contract in any way varied from the oral contract made over the telephone and did not allege any fraud or any fact that would authorize testimony to be offered to contradict or vary the terms of the contract as written. The record shows that the official grain inspector in Kansas City inspected and graded the wheat when it was loaded .on the car at Kansas City and graded it No. 2 red wheat, and in the absence of any pleading challenging the contract as written, the testimony of witnesses attempting to show that the wheat was not No. 2 red wheat was irrelevant, immaterial, and inadmissible. The parties had a right to obligate themselves to be bound by the grading as made by the official grader at Kansas City, and, in the absence of any pleading that the written contract was not the real contract or that the official grading was fraudulently done, the parties are bound by the grade as established by the official grain grader in Kansas City. The trial court was in error ip not sustaining, appellant’s objection to the testimony of the witnesses with reference to the condition of the wheat when it reached Blum, Tex., because it was an effort to vary a written contract with no pleading to support same. For the errors indicated, the cause as between appellant and the Blum Milling Company, appellee, is reversed and remanded, and as to the appellees Atchison, Topeka & Santa Fé Railway Company and the Gulf, Colorado & Santa Fé Railway Company the cause is affirmed.