229 S.W. 317 | Tex. Comm'n App. | 1921
On the 10th day of August, 1911, plaintiff in error, O. R. Slavens, entered into a contract with defendants in error. James Bros., a copartnership composed of A. M. James and W. P. James, by the terms of which James Bros, sold to Slavens 1,300 to 1,600 head of four year old steers at $49 per head, with the right to “cut back” 10 per cent, of the number and pay for them at the rate of $47.50 per head, to be delivered on cars at Dalhart on November 1, 1911, and 1,700 to 1,800 head of three year old steers at $42 per head, with the option to take a part or all of them in the fall of 1911 at $42 per head, or in the following spring at $45 per head, with the right to select and refuse 10 per cent, of the number at the time of delivery. The contract provided that Slavens should put in a bank to be agreed upon by the parties the sum of $5,000 as a forfeit, $2,500 for the four year old and $2,500 for the three year old steers.
By subsequent agreement, and in discharge of the $5,000 obligation mentioned in the contract, Slavens executed and delivered his note to Jamos Bros, for $3,500 and his note to the Dalhart National Bank for $1,500, which latter note was indorsed by James Bros., who received the money borrowed upon the faith of it.
Upon Slavens informing James Bros, of his inability to secure the money by November 1 to pay for the four year old steers, it was agreed that he would take and pay for the three year old steers on or before November 1, instead of exercising his option of taking them in the spring, and that James Bros, would suffer the loss sustained by reason of the sale of the four year old steers upon a declining market.
Slavens did not go in person to receive the cattle, but arranged with one Fremont Rogers, a representative of the Interstate National Bank, from which Slavens had arranged to secure the money to pay for the steers, to go to Dalhart to receive and pay for them.
Rogers arrived at Dalhart on November 2, and, after an inspection of the cattle on November 3, informed James Bros, that he would not advance the full purchase price agreed to be paid for the steers, but would advance the purchase price less $5,000. Whereupon A. M. James wrote and Rogers signed and sent the following telegram:
“Dalhart, Texas, November 3, 1911. O. R. Slavens, Hutchison, Kan. Theis did not buy steers. James proposes to brand cattle and leave them on ranch and carry you for $5,000 till spring. You to take cattle then and pay him note and $2 per head pasture, or he will keep cattle and pay amount borrowed. Think this best proposition under circumstances. Answer quick. Fremont Rogers.”
To this telegram Slavens answered:
“Fremont Rogers, Dalhart, Texas. Better for him to keep cattle. Him pay amount borrowed. Impossible for me to do anything. Still confined to house. O. R. Slavens.”
Rogers replied to this telegram as follows:
“Don’t fully understand your message. Do you want to accept James’ proposition as wired last night? I can stay here and cut cattle if needed. Answer at Texhoma.”
To this Slavens replied as follows:
“I don’t want James’ cattle under any circumstances.”
On or about November 6, 1911, Slavens received from Rogers a letter which reads in part as follows:
“His proposition was to give you six months’ time on this note, charge you $2 per head for wintering the cattle, and if you were not at that time in a position to take up your note of $5,-000 and pay the pasture bill, Andy (James) agreed to take up the paper held by the bank. This would give you all the chances to win and nothing to lose. As it stands now he holds your note for $5,000 and by your turning this proposition down he is going to collect it if possible. But on bis proposition he was giving you six months to handle the deal in, taking off $1 per head of the pasture price and giving you all of the profits, provided you should succeed in selling.”
Upon receipt of this letter Slavens wired Rogers as follows:
“Close deal with James Bros, according to your letter from Texhoma of November 4. Send contract and note to be signed.”
He also wired James Bros, as follows:
“Wired Rogers Texhoma close deal with you according to his letter of November 4.”
The $1,500 note remained in the bank unpaid; Jifmes Bros, paying the interest thereon. Eventually James Bros, came into possession of and instituted this suit to collect the note, alleging that the bank had for a valuable consideration transferred and delivered the same to them.
Slavens defended upon the ground that the contract was, as disclosed by the correspondence copied above, completely rescinded by mutual agreement of the parties, and that therefore the consideration for the note had failed.
The trial, which was before the court without a jury, resulted in a judgment in favor of James Bros, for the amount of. the note. Upon appeal the judgment was affirmed. 211 S. W. 842.
We recommend, therefore, that the judgments of the Court of Civil Appeals and of the district court in favor of defendant in error be reversed and rendered in favor of plaintiff in error.
The judgment recommended in the report of the Commission' of Appeals is adopted and will be entered as the judgment of the Supreme Court.
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