127 S.W.2d 219 | Tex. App. | 1937
This suit was brought by Tillamook Bay Fish Company and others against J. M. Ford, a public warehouseman, and Republic Underwriters, as surety upon his bond as such, to recover the balance of the sales price of certain salmon originally stored with said Ford and later delivered by him at plaintiff's request, the sales price of which the said Ford failed to remit. The jury answered certain special issues in favor of plaintiffs and judgment was entered accordingly. Republic Underwriters alone appealed.
The facts are without dispute. Ford was engaged in operating a public warehouse at Lubbock. In 1933, he, as principal, and Republic Underwriters, as surety, executed and filed with the county clerk a bond in the sum of $5,000, conditioned as follows: "The condition of this obligation is such, however, that should the said J. M. Ford *220 faithfully perform-duty as a public warehouseman, in accordance with the law, then this obligation is to be null and void; otherwise, the same is to remain in full force and effect for one year from date." During the life of said bond the appellee Tillamook Bay Fish Company delivered to Ford a shipment of canned salmon, with the understanding that said merchandise should be delivered to a certain purchaser in parcels from time to time, and upon delivery of any portion thereof the said Ford should collect the purchase price and remit the same to said Fish Company, or its assignee. Ford delivered all of said merchandise and collected for same as per the agreement but failed to remit the sales price to the extent of $1,164.13. This suit was brought to collect the balance. The jury found that there was a general custom among public warehousemen, upon request of the owner, to deliver merchandise to purchasers and collect the purchase price therefor and remit the same to the seller.
The material question is whether or not the bond given by Ford as a public warehouseman covered transactions such as is here under consideration. The bond, by its terms, obligated the principal therein to faithfully discharge the duties of a public warehouseman in accordance with the law. At that time, Revised Statutes, art. 5664, defined a warehouseman as a person lawfully engaged in the business of storing goods for profits. Other provisions of the Uniform Warehouse Receipts Act, as embodied in Chapter 4, Title 93 of the Revised Statutes 1925, art. 5612 et seq., defined more in detail the duties of a public warehouseman. The bond was given in compliance with the provisions of the statute as a prerequisite to the right to qualify as a public warehouseman and it is apparent that the surety in executing the same did so in the light of the statutes then in force defining the duties of a public warehouseman, and the surety's liabilities so assumed cannot be extended beyond the duties so embodied in the statutes. 7 Tex.Jur. 86; 9 C.J. 34; American Surety Company v. State, Tex. Civ. App.
We do not consider it material to determine whether this bond was given in compliance with the provisions of Revised Statutes, art. 5569, which is a part of Chapter 2, or Article 5661, which is a part of Chapter 4, of Title 93 of our statutes. Each of these chapters were adopted at the same time, when the statutes were recodified in 1925, and are to be construed together. 39 Tex.Jur. 260. Each of the articles above referred to requires every person operating a public warehouse to execute a bond in the sum of $5,000 for the faithful performance of his duties as such. The other provisions of Chapter 4, defining the duties of a public warehouseman, were adopted at the same time as the above articles and must be read in connection with the provisions thereof in order to ascertain the duties so assumed by a surety on such bond.
Our attention has been called to the case of Indemnity Insurance Company v. Archibald, Tex. Civ. App.
That part of the judgment of the trial court in which judgment was rendered for the plaintiffs against Republic Underwriters is reversed, and judgment is here rendered in favor of said defendant. The judgment of the trial court in all other respects is affirmed.