*1 GIN, COOPERATIVE COTTON IDALOU Appellant, GUE, Appellee.
Esmond P.
No. 15369. Appeals Texas.
Court of Civil
Dallas.
Sept. 26, 1958.
Rehearing Denied Nov.
241 or about November the Gin Com- pany, request specific at plaintiff, ship- of ped (30,620 52 bales lbs.) of order to Sealy Company, Worth, Fort Mattress which delivery accepted was com- and the fpr Lubbock, Blumrosen, Treadaway & modity paid remaining The 48 for. appellant. of cotton lint ready waste were to for Nash, appellee. Dallas, shipment Thomas F. between November 20 and
controversy arising over fail- defendant’s ure complete part plaintiff’s or- of YOUNG, Justice. der. connection, plaintiff this testified appellee Com- by against The suit the Gin that on November by he called was pany breach contract and dam- Manager say General 48 Jones by profits, premised on ages way lost bales of ready, Buyer linters were Gue re- 48 lint cleaner failure to deliver bales of questing couple days delay, but if not court, judgment Upon waste. trial to the possible, go “to ship ahead and it to me as $1,560 against was rendered defendant per my instructions, first which $1,716 plus fees—-a total $156 were in and which were costs, appeal. this Dallas destination.” hand, On the other Mr. testified September 1955,plaintiff On Gue had Jones inability plaintiff to an Gin, to contact for in- Cooperative sent to Idalou Cotton ship structions on where to bales of Idalou, County, following con- Lubbock linters, finally disposing of same Frank purchase (quoted part): firmation of “ ** * Biring, buyer, Plainview, 10 nn per cotton you (purchase from) I confirm lb.; the latter testifying on behalf of de- bales, Quantity: this date as follows: “Q. fendant: difference, What each, averaging lbs. or about- 650/700 any, of lint cleaner gross weight. Grade: Lint Cleaner lbs. Texas, motes or in Plainview, waste your Lint Waste from Hardwick-Etter Idalou, Q. Texas? A. None. Was the Staple: (first 100 bales Cleaners Growth. you Cooperative Idalou season) made or to be this Price: for the lint Gin cleaner motes or waste the per lb. Free (10.00c) Ten and cents 00/100 of such on cotton Idalou, cars, charges of all FOB 50 bale Plainview, Texas, purchase? on the date of Delivery: Shipment or Texas. When A. Yes.” Gue, Spot ready in to Esmond P. cars 50/B Dallas, Tare: 21A Santa RR. Texas. Fe plaintiff’s September line with letter Actuals: Guaranteed not exceed 5%. stipulated it of confirmation was dry and free of Remarks: be loaded To parties that the measure of involv- Draft, Sight damage. Reimbursement: plaintiff’s suit, ed and on defendant’s net, exchange Buy- free attached B/L cross-action, “shall be determined in ac- your Buyer on thru er. Please draw drafts cordance the rules -of the Cot- Dallas, Co., Texas Bank & Trust Texas. April 1, Association in effect on ton 1955.” Conditions:' Texas Cotton Assn. Rules to' quoted part: These material except light heavy govern, weight & “Rule 2—Fulfillment of Contracts. by buyer weight Insurance bales. effected Complete Failure to Contract Within Texas”; Idalou, signed fob from cars - Time Limit—Clause 1—On parties. both containing specified contracts date of buyer’suf-’ grade delivery, give Lint cleaner waste is low lint seller must cot- ton, plain- by-product gin; ficient time and a cotton notice of Gue, linters, templated delivery enable the a Dallas dealer cotton tiff physical delivery cotton, take off-grade cotton .waste. On con terms due to considered, in no of contract distance beyond control, supported be- ditions 48 hours less than event notice then, affidavits, delivery. substantiating the contract date fore n * *3 penalty be of shall waived. $1.50 give such of failure to “In event the “Attorney’s is 3—It Fees—Clause notice, failure to of event and/or specifically by buyer the agreed buyer the according to contract deliver seller, any a accruing if claim option such of shall the have subject contract made to these market, open and shall purchase in the attorney placed in the hands of an the dif- with charge credit seller or or suit collection is collected by him price paid ference between percent through courts, that ten original open market and the in the principal on and inter- additional any ex- price, contract in addition owing then on such claim will est incurred; or penses, losses or other as added fees.” of provides for Bills when contract dates, controversy The in the main narrows to by specified Lading from interior which the construction above rules buyer option of clos- of shall have the above, agreed govern in event had should ing provided as out contract pur- of demand, breach of instant furnish, contract on if seller cannot appellant damages; and claim for chase contract within hours after such contending appellee’s remedy was to dates, proof Lading have that Bills of market, open charg- fill contract contract. in the signed, according to the ing crediting differ- or the seller with the being “Likewise, buyer, after between him in the ence by the of the time notified open original delivery, to receive shall fail any expenses price, in or other addition to per him, tendered as cotton incurred; liability for default losses contract, on or before the terms of the per per bale as Rule otherwise $1.50 delivery contract, specified in the date 1(a). Claus (Note: its cross-action notify buyer, shall then the seller appellant the benefit of this latter claims telegram, his to resell or intention clause, suing Gue as default failure cotton, and shall extend the time to give shipping instructions.) up hours (Sun- the cotton 48 taking Holidays days excepted) after dis- Manifestly, the trial court construed the telegram. At ex- patching such Texas Cotton Association rules relative hours, piration if the cotton has Buyer’s per- remedy, to said Clause as up, must, then the seller not been taken words, missive; in having other the choice thereafter, days three exercise within suing law event common open cotton to resell the purchase open inability to linters in charge shall credit market and quality for. Facts market of contracted the difference between the basis of underlying and circumstances this open by him in the mar- price received recovery plaintiff’s judgment in con- ket and the sequence are here summarized: expenses other any loss- addition Gue letter of from defend- The incurred, and when this done es for the “first 100 made or ant be considered fulfilled. shall season”; plaintiff -testifying this be made party in case default “(a) each product the ginning first season party default pay to shall freeze, yielded bad however, before weather or Provided, per bale. $1.50 waste; quality of lint cleaner defaulting party give better should Company dealt with defendant Gin he had in default 48 hours notice years, considering its first 100 previous accept inability to deliver or
-243 premium.” (In bales “worth market in November December nection, Manager Gue, that if there (13) learning said after that defend- Jones waste, any in baled linter ant had in his difference sold the bales called cotton.”) “earlier cotton the better Gue did from not fill the learning sale stated that charge defendant’s defendant party, of the 48 he went bales to another defendant with the difference between price paid to West for lint Texas and New Mexico origi- him market and waste, finding good contracted pound; none nal contract of 10 cents for, miles; 2,000 making tripa (16) about that defendant was in default going Biring buy to Frank identical by ship- could have fulfilled its contract bales, sell; *4 48 who not ping each, did want to pounds last 48 bales of 650 only gins 31,200 he knew of the same having weighing Gue, three pounds, plaintiff to quality for, Coop- as 21A, Spot Railroad, Dallas, contracted defendant Fe Tex- Santa erative, as, one at Lamesa had al- he where called for of in his con- letter ready bought output firmation; season’s of cotton (21) highest quality best and except bales, lint first one at 30 and lint of cleaner waste defendant made Center, informed, Hale gin, which during (October, he 1955season November already had con- sold out to an Oklahoma and December) consisted of 100 first strength cern. He produced; further testified that on (23) bales unable to lo- Gue was defendant, agreement of his purchase with a con- cate and any lint waste ' tract had been made him Direct grade, type quality for of which Mattress Company defendant; 25 bales (24) Dallas for had he contracted with he per of the lint pound; waste at 16 cents and could have sold 48 in bales called for that he gotten could have for per pound his contract at least 16 for cents bales, remaining having been offered profit could of and made at least have per 19 pound cents delivered,' while at a per pound; cents (25) five entitled Chicago convention. to recover under contract for at least 31,200 pounds lint of cleaner and waste Several defense testified to the witnesses having of suffered loss at least five cents contrary foregoing statements of default; pound per of virtue defendant’s Gue; in effect that lint cleaner waste of required Gue (26) was not under of good quality as and kind was available at Texas Association Cotton to in Lamesa, gins; Center Hale and Plainview any lint cotton waste of purchased Frank Biring, who had re- grade quality inferior that con- an to maining question, testifying bales defendant; having for with tracted made disposition thereof to a dealer at Dallas to effort locate and reasonable per pound 11.54 cents was the best cotton waste for which had lint he obtainable for same market. tracted, but could not obtain same. {Con- Law): (1) motion clusions That defendant findings Defendant filed for plaintiff and, fact and its contract with in fail- conclusions of law breached additional thereto, requested ing ship 48 bales of lint findings a series of to cleaner to waste Railroad, approval Spot 21A, the court’s Santa and him at Fe Dal- inclusion. Find- las, Texas, 1955; ings duly (2) were made in November and filed but too lengthy quotation However, required shipping to was not furnish full. Gue findings effect, various must be as to said 48 bales other than stated instructions together conclusions; September with the court’s in the contract called for example that Rules of the that Gue was to recover (3) Cotton entitled govern profit Association were for breach of and five the case made as by plaintiff regards 31,200 damages: per pound pounds, as (12) That cents lint cotton have grades profit cleaner waste of would made had the various he quantities bought filled. sold
244 except assert er- appeal, through provided 1 Clause
Points of
plaintiff’s damages,
1(a),
party
default
computing
“In each
ror in
case the
any,
pay
of Texas
in default $1.50
with Rules
shall
in accordance
pointed
21
through
9
bale.” It
that a contract
Points
out
Cotton Association.
against
exceptions
pleading,
strongly
to be construed
involve
most
same;
if,
in its
findings
person
to refusal
fact,
drafting
court’s
point
preparation
requested
plaintiff
findings; and
did not intend
defendant’s
could
govern
default,
cross-ac-
he
court’s failure to sustain
rules to
event
excep-
easily
plaintiff’s
very
provided
tion for
breach of
for the
have
weight
damages computed
light
heavy
said Rules of
tion
$1.-
“as
except
However,
per bale,
plus
damages.”
there
$72
$7.20
rules;
complaint
ambiguity
no
these
fees.
consequence
to be
and in
terms thereof are
1, gov-
Clause
The Association Rule
meaning.
accepted
ordinary
given their
by plain-
any
damage
erning
claim
Daniel,
Corp.
I.
Universal C. T. Credit
again quoted: “In the event
tiff should be
Tex.
S.W.2d
notice,
give
of failure
and/or
association,
trade
designated
Rules
*5
to
according
to
of failure
deliver
event
incorporated,
part of the
when
become
option
buyer
the
contract
shall have
the
fully
though specifically
contract as
as
market,
open
purchase
the
such
in
146;
therein;
Tex.Jur., p.
written
37-A
seller with
charge or credit the
and shall
Early-Foster
appellant
v.
cites
Co.
price paid
between the
the difference
520,
Gottlieb, Tex.Civ.App., 214
S.W.
open
and the
him in the
Coleman, Tex.
Magnolia
v.
Provision Co.
any expenses,
price, in addition
contract
to
* *
in
Com.App.,
proper
3
for a
S.W.2d
(Em-
other
or
losses incurred
terpretation of
trade
when
phasis ours.)
upon
to be
agreed
as method
“option” implies a
to
right
The word
damages
a contract
fixing
breach.
not,
optionee may
as
choose.
or
the
act
“
procedure
foregoing
outlined
the
cases the
* *
*
things,
two
choice between
aggrieved
rules on
of the
in the
behalf
* *
courses,
*;
propositions
right,
or
mandatory perforce
the
held
liberty
al-
power,
choosing
between
or
“shall”,
than
“must”
rather
words
**
that
*. It has
said
ternatives
per
is held
“may”; a
that
course
to
meaning
given
of must
it cannot be
optional. Planters’
Oil Co. v.
missive
511;
p.
v.
Norwood
or shall.” 67
Gresham,
C.J.S.
Tex.Civ.App., 202
145.
S.W.
Adams, Tex.Civ.App.,
“Its
it is sale and the vendor remedy re- therein In third point, appellant proceeds opinion demonstrate 412. In original S.W.2d we have- rules, wording “option” per- under the these held the word has made whole, buyer’s remedy was buyer,, strued as missive the remedy available to the “likewise”,, limited though the adverb per- seller; meaning in case of breach like manner. We now conclude law, significance a resort to common notwith- undue mitting has been heretofore “option” in such term standing “option”, accorded the word use viewing Clause entirety. connection. 1 includes Association Rule Clause “The contract must be construed' buyer’s to the
remedy available seller aas whole. It paragraphed cannot be tendered, failure to receive the cotton paragraphs severalty construed with not viewed in provision other, out reference ap it being each opinion seller’s perspective. Said in full parent that they inter corelated and quoted: remedy again should dependent.” Davenport Sparkman, v. Tex. “Likewise, buyer, Com.App., if the after 208 S.W. 659 (Sup.Ct. Adopted). seller of that, notified the time “It is axiomatic ‘an agree delivery, shall fail to receive ment interpreted should be as a whole him, meaning gathered tendered from con the entire contract, on or text particular words, terms of the before and not phrases, from delivery specified date clauses. In fact entire agreement buyer, notify shall then the seller is to be considered to determine the mean telegram, part. "provisions should,, intention resell ing of each All cotton, possible, shall time extend the if interpreted be so as to harmo up cotton 48 hours taking 112,. nize with each other.’ Am.Jur. Holidays aft- (Sundays excepted) Alderman, Contracts 241.” Alderman § dispatching telegram. Tex.Civ.App., At the er 296 S.W.2d 315. Under- hours, expiration if the cotton construction, of 48 foregoing rules of the- up, has not been taken then the seller must exercise his to resell the *7 thereafter, must, days ex- open market, within three cotton in the (in likewise like in right ercise to resell manner) buyer the cotton the op must exercise his open or right the market and shall charge tion or open in the mar buyer ket; credit with the be- “option” the difference given accepted’ be the price tween received him in the meaning the law of sales as “an agree open original and the market party ment which privi one confers a n any expenses or upon other, addition lege right or in reference incurred, other losses and when this to a personal' contract to sell aor sale of shall be considered property, done the contract may which the latter exercise- ours.) (Emphasis not, fulfilled.” at example,, his discretion. For may buy chattels, “an be given states “In each then case Clause 1-A * * 37-A (Sales) § Tex.Jur. pay party in to the not default shall conferred, defined, p. only 289. So per bale”, in default $1.50 upon question,. under the penalty procedure latter default, of seller’s case that of may be avoided. and', open in the market Here, points out, appellant word charging crediting seller with the dif “option” price paid not used recitation ference between the emphasized remedy, while price, words market seller’s or take “must”, mandatory all; provisions “shall” make at no action 2A. to him. Magnolia being Pro- remedy available available in such event the- to- Coleman, Tex.Com.App., 3 party Co. not in default. v. vision did the be long based on rule for Appellee argues that “nowhere established pro- sale, e., breach the dif- Association of contracts i. rules of Cotton into go ference buyer failed to between if the vide op- of his market at the time when and market the exercise termi- tion, delivery should be where of the linters then the contract 37-B, come of the should made. dealing have been nated and Tex.Jur. logically consequence must (Sales) p. the cause an end.” But such result 76. mandatory nature remanded should least be reversed and follow from making hand, without other for another trial. rules. On the parties, cannot we contract for the new grounds hereinabove stated However rem- additional engraft onto these rules the judgment the cause is reversed in case edy law common of recourse to Judgment here trial court set aside. pur- appellee’s any reason failure appellee in rendered for sum of $79.20 the kind chase on appellant. prayed in brief of for. of linters contracted quality conclusions, upon reached rehear- Above appellant’s said motion
ing, require that sustained, here reversed and cause recovery appellee’s limit so as to
rendered bale, and at- 1(a)
to Clause of $1.50 fees,
torney’s a total amount of $79.20. TREVINO, Appellant, Pedro Cantu now of any event we are rules, opinion that, in absence of the even Ray THOMAS, Appellee. mistakenly the trial has made lost court No. 13404. profits this the measure contract. did breach of The Court Appeals Court of Civil of Texas. grade find that lint cleaner waste of the San Antonio. appellee’s quality called con Oct. 1958. bought and sold in tract Rehearing Denied Nov. December, open' November contrary, finding that such on the qualities grades commodity various bought during named
were and sold *8 year.
months The cotton was sold cars, Idalou, shipped
FOB
Dallas, part purchase price no
paid Appellee evi advance. offered no showing market
dence value either in or Idalou for the Dallas By exhibit
mentioned months and season. brief, appellant shows
attached lint cleaner
prices at which waste was (1955 crop)
bought and sold on the case;
as revealed all the evidence 11.75cents highest
pound.
Appellee’s damages, (even if measure of
permittedly allowed the contract to
prosecute remedy) law his common would