259 S.W. 1112 | Tex. App. | 1924
Error is predicated upon the court's finding "against the defendants on their plea in reconvention." Practically the only questions at issue between the parties are involved in the plea in reconventions; and clearly we think, under the pleading and evidence, the appellants are entitled to a judgment in their favor as an offset to the appellee's judgment. It is conclusively shown that the appellants and the appellee made an *1115 oral contract on September 2,1920, by which the appellants agreed to sell and appellee agreed to buy at expressly stated prices all the rough lumber of the dimensions expressly stated, of the grade of "No. 2 or better," then piled in stacks on the millyard, estimated to aggregate 390,000 feet, deliverable by appellants f. o. b. railway cars at Huntsville, under shipping orders to be given by appellee. The evidence is undisputed that the appellee, the buyer, was to secure and furnish through the railway company the necessary cars. The time of total delivery was stipulated in the agreement, as appellants' evidence goes to show, at within 60 days from the date of the contract. But appellee's evidence is to the effect that no date was fixed for the total delivery.
In view of this conflict of evidence it must be assumed as a fact, as involved in the court's findings, that no specific time of total delivery was stipulated in the oral contract. The circumstances, though, manifest the intention of the parties that the total delivery would be completed within a reasonable time. The shipments actually began to be made in September, and continued rather regularly for about 60 days. Hence the law would imply that the parties provided that cars were to be furnished and total delivery was to be made within a reasonable time from the date of the contract. By its terms the contract so made was entire, and not severable, having the legal effect of obligating the appellee to take all the lumber of the specific dimensions stated of the grade of "No. 2 or better" contained in the stacks on the mill yard, to the quantity of 390,000 feet "estimated." "Estimated," as used, is practically the same as "more or less." The appellants were legally obligated by the contract to deliver f. o. b. the cars all that quality and quantity of lumber in the stacks. If the appellants in performing the contract shipped lumber containing any below the grade of "No. 2 or better," the appellee would be entitled to reject the same, or make claim for the difference in value. But, since the agreement shows clearly that the provision was f. o. b. the cars at point of shipment, and that such provision was so used to designate the place at which delivery was to be consummated, the title to the lumber did not pass to appellee before and until the lumber was placed on the cars for shipment. Then the care of the lumber while on the yard awaiting shipment devolved upon the appellants, until at least for a reasonable time after the date of the contract until the total shipment could be completed. Therefore, in order for the appellants to recover for the damaged lumber in evidence, not placed on the cars for shipment, it devolved upon them to show that a failure to make total delivery within a reasonable time was not due to their fault. This we think they have conclusively shown by the evidence. The appellee was to give all the shipping orders within a reasonable time from the date of the contract, and this he did not do. It was more than a year after the date of the contract that as much as 48,000 feet was there on the mill yard. No shipping order for it had been received, and proper demand had frequently been made of appellee for shipping orders to complete a total delivery. It was after this failure to give such shipping orders that the appellants, to prevent further damage and deterioration, in November, 1921, sold the 48,000 feet to Mr. Ernest. What is a reasonable time within which to give the shipping orders, when the facts are undisputed, becomes a matter of law, especially under the facts in this record. Having provided, as the law implies, that the shipping orders would be given within a reasonable time, the appellee was legally required to do so. The giving of the orders and furnishing the cars by the appellee, and the loading of the lumber f. o. b. the cars by the appellants, were concurrent and interdependent terms of agreement, and the doing of the things required of each party was the consideration therefor. It follows that appellants would be entitled to recover some amount on their plea in reconvention, since it is undisputed in the evidence that appellee breached the agreement to give final shipping orders within a reasonable time. What amount? It is conclusively shown that as much as 48,000 feet of the lumber was undelivered and sold to Mr. Ernest. Of the 48,000 feet sold to Mr. Ernest there was, it appears, 8,000 feet of a grade originally below No. 2, leaving 40,000 feet in the first instance of No. 2 grade. 40,000 feet at the lowest contract price of $20 per thousand would be $800, and deducting the $384 obtained from the sale would leave $416, which amount appellants should have judgment for.
The judgment of the district court is therefore modified so as to allow appellants judgment on their plea in reconvention in the sum of $416, and the same to be a set-off to that amount with the interest thereon from this date, against appellants' judgment. The Judgment as so modified will be in all things affirmed; the appellee to pay costs of appeal. *1119