C. S. Martin & Son v. John Bonura & Co.
214 S.W. 841
Tex. App.
1919
Check Treatment
LEVY, J.

(after stating the facts as above),

[1] Appellant insists that the court erred in overruling the demurrer, because the petition did not allege that the plaintiff, a Louisiana corporation, had a permit to do business in Texas. The petition alleged that the contract was executed and delivered in New Orleans, La., by the terms of which G. S. Martin & Son contracted to sell to John Bonura & Co., of New Orleans, La., 10 cars of Elberta peaches at $1.25 a bushel, to be delivered in Mt. Vernon, Tex., f. o. b. the cars, properly iced and in refrigerator cars “to be shipped to points without the state.” It is thought that the court did not err in overruling the demurrer. The contract here alleged is to have the peaches delivered to a common carrier for transportation from the state. The alleged transaction was interstate commerce, and the state statute does not apply. Miller v. Goodman, 91 Tex. 41, 40 S. W. 718; Manufacturing Co. v. Finklestein, 54 S. W. 618; Medical Co. v. Johnson, 162 S. W. 394.

[2] The third assignment predicates error upon the refusal to instruct a verdict for the defendant, upon the ground that there was proven a .violation on the part of the plaintiff of a material stipulation in the contract. The stipulation in question reads:

“The money with which to pay for the said peaches is to bo placed or wired to the First National Bank of Mt. Vernon, Texas, and when peaches begin to move the said John Bonura & Co., Incorporated,- is to place an amount equal to $50 per car for each car bought, said amount to be placed in the First National Bank of Mt. Vernon, Texas, to the credit of O. S. Martin & Son, same to be earnest money to secure the performance by the said John Bonura & Co., Incorporated, of this contract; and in the event the said John Bonura & Go., Incorporated, shall fail or refuse to carry out the terms of this contract, then the said G. S. Martin & Son shall have the right to said sum as *843 their damages by reason of the failure of the said John Bonura & Co., Incorporated, to carry out the terms of this contract. In the event the said John Bonura & Co., Incorporated, carries out the terms of the contract, the said sum of money shall be applied to the payment of the last cars of peaches delivered under the contract.”

It clearly appears from the wording used by the parties that the deposit of $50 a car was “to be earnest money to secure the performance by the said John Bonura & Co., Incorporated, of this contract,” and not exclusively in part payment of the price of the peaches. The object of “earnest money” is merely to bind the bargain and to evidence an irrevocable contract. Until the earnest or forfeit money is paid the contract is made determinable at the option of one of the parties ; but here the earnest money was payable “when peaches begin to move,” meaning, evidently, at Mt. Vernon, Tex. The words just quoted give much latitude as to the particular day when the money was to be deposited. The appellants, though, by the letter of June 24th undertook, it seems, to notify the appellee that peaches “will begin to move somewhere about the 10th (of July).” As appellants were at the place where the peaches were expected to be grown, and in a position to know when the Elberta peach crop there would be ready for marketing, the ap-pellee reasonably could rely on the statements of the letter as to the time so fixed or stated therein by the appellants as to when peaches would begin to move. And when the check for the $500 earnest money reached the appellant on July 11th, at 10 o’clock, it would fairly appear that the time would be such as people would ordinarily consider as included in the words “about July 10th.” And the letter of appellants further stated to appel-lee, “Will notify you as soon as movement commences,” which contemplated further notice in that respect. There does not appear in the record any reason why the appellee may not have wholly relied, as it did, upon this letter of appellants for further information.

Even though there may be an optibn to terminate the contract, yet the parties should not be permitted to exercise it improperly and unjustly, to the injury of the other party, and at the same time escape all liability. Just what may be required in a particular case must depend largely upon the subject-matter and nature of the particular contract and the circumstances of the case. The appellants, it conclusively appears, undertook to terminate the contract solely on the ground that the earnest money did not arrive literally on the morning of the 10th of July, even though their letters were not that precise. It is concluded that it should be held, as the trial court did, that there was no intention on the part of John Bonura & Co. to not perform the contract, and that there was suin-eient compliance as to the payment of the earnest money within the period of time voluntarily induced by the appellants in the letter of June 24th above quoted. .

The remaining assignments have each been considered, and the conclusion reached that they should be overruled.

Judgment affirmed.

<S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes