Gregg & Co. v. Fitzhugh

Walker, J. This action is brought to recover a large sum of money advanced by the plaintiffs in error, to the defendant, on a contract wherein it is alleged the defendant undertook and promised to deliver at Marshall, Texas, flour to the value of the amount advanced, to wit, three thousand seven hundred and fifty dollars, at the rate of five dollars and fifty cents per hundred pounds. The plaintiff is entitled to recover, in this action, the money advanced, with lawful interest; or, if he pursues his remedy for damages, the measure of damage would be the highest market price of flour, at Marshall, at any time between that specified for the delivery of the flour, and the day of trial. The objection taken to the admission of the receipt in evidence should not have been sustained. (See Cavasos v. Gon [129] zales, 33 Texas, 133; Taylor v. Duncan, ibid. 440; Mogelin v. Westhoff, ibid. 788; Dailey v. Coker, id. 815; also prior and subsequent decisions of the court.) The ruling of the District Court was erroneous in excluding any part of the receipt, so called, from the jury. The judgment is therefore reversed and the cause remanded. Reversed and remanded.