Appellant, Von Harten & Clark, Inc., as plaintiff, brought suit against *677 W. D. Nеvels, G. E. Lockhart, and W.' B. Slaton for damage on alleged breach of contract of sale for one hundred bales of cotton. It is alleged on the 25th day of September, 1919, the appellees, through W. B. Slaton, sold to G. E. Maedgen, who assigned the contract to appellant. The cоntract was negotiated over'the telephone and later confirmed by letter. The confirmation letters state the contract as follows:
“This will serve to confirm purchase from you by telephone one hundred hales of cotton at $.31, basis middling, f. o. b. Tahoka, to be delivered any day nоt) later than the 20th day of October.”
The appellee Lockhart confirmed the same by letter:
“Some days ago Mr. W. D. Nevels and myself sold to you through Mr. W. B. Slaton one hundred bales of cotton, to be delivered on cars Tahoka, Texas, on or before October 20th-, at thirty-one cents, middling basis, which contract for myself and Mr. Nevels I beg to confirm.”
It is alleged that appelleеs failed to deliver the cotton on or before the'20th day of October; that on October 21st, appellants through its agent, called upon appellees and demanded delivery which- appellees refused. By reason thereof appellant was damaged $3,662.45, thft difference between the contract price and market price at the time and place of delivery. /
In addition to a general denial and other special pleas, the appellee pleaded the contract was entered into in contemplation of—
“the invariable сustom and rules among persons dealing in spot cotton sold upon contracts for future delivery for the buyer to have some one at the point of delivery upon the exact day and date of delivery to grade and accept the same and give shipping instructions, etc.; that in the contract sued upon there was no agreed price per pound understood between the parties, but the defendants merely undertook to deliver to the said O. E. Maedgen 100 bales of merchantable cotton; that the cotton raised in Lynn and surrounding counties during the fall of 1919 was of several grades, and of this fact the said C. E. Maedgen and the plaintiff were fully advised; that it was in the contemplation of the said O. E. Maedgen and these defendants, and it is and was an invariable custom among cotton buyers and sellers, that the said 100 bales of cotton were to be accepted whethеr the same were in whole or in part middling, good middling, low middling, strict middling, or otherwise;' that the price of cotton, while extremely fluctuating from day to day, is always well defined at any particular time as between the respective grades thereof, and in accordance with the universal custom amоng cotton buyers and sellers and brokers it'was the duty of said O.' E. Maedgen and of the plaintiff, if it had any lawful connection with the said purchase and sale, to be at Ta-hoka, Tex., or have some one there on the 20th day -of October, 1919, and not later, to grade said cotton and acceрt the same, and to come to some understanding with these defendants as to the price to be paid and to give- these defendants some instruction as to how, when, and where to ship the same and upon whom and through what bank to draw for the purchase price.”
It is alleged also that appellant was not present in person nor by representative to receive the cotton on the day agreed upon and not until long after. They also alleged their readiness to have delivered the cotton on that day. The case was submitted to a jury upon special issues аnd upon their finding the court rendered judgment for the appellees. The findings of the jury are as follows:
“(1) That it was the contract between plaintiff and defendant that the 100 bales of cotton at basis of 31 cents middling was to be delivered f. o. b. cars Tahoka, Tex., not later than October 20, 1919.
“(2) That the defendants were ready and willing to deliver to plaintiff 100 bales of cotton, middling basis, at 31 cents on October 20, 1919.
“(3) That S. W. Staton, agent of plaintiff, came to Tahoka, Tex., and demanded delivery of the cotton October 23, 1919.
“(4) That the market value of middling cotton, Tahoka, Tex., October 20, 1919, was 35 cents per pound.
“(5) That it was the general custom among persons dealing in spot cotton or contracts for future delivery for the buyer to have a representative at the place of future delivery on the day for delivery to grade and classify the cotton, settle for same, and give shipping instructiоns.
“(6) That Von Harten and Clark were financially able to carry out the contract and pay for said cotton October 20, 1919, and also October 23, 1919, "when its agents called on defendants for delivery.
“(7) That the defendants did not tender to plaintiff f. o. b. cars, or to the railway company at Tahokа, for plaintiff, 100 bales of cotton of the grade specified in said' contract on October 20,1919.”
Appellant’s assignment is based upon its motion in the trial court for a judgment, on the ground that the jury found that the defendant sold to plaintiff 100 bales of cotton-at a basis of 31 cents middling, to be delivered f. o. b. Tаhoka, Tex., not later than October 20/1919, and also found that the defendants did not tender to plaintiff f. o. b. .cars nor to the railway company at Tahoka, Tex., for plaintiff, the cotton, and found that plaintiff was financially able to pay at said date, and because plaintiff, through its agent, demаnded delivery on the 23d day of October, 1919, and that defendants refused delivery.
“such as good middling, strict middling, middling fair, middling, and low middling. It is also a fact that there is a recognized difference in the prices of the different grades. The basis from which these prices are figured is the price of middling cotton.”
He also testified that it was an invariablе custom to grade and classify cotton at the time of delivery as the basis of settlement.
“The variation in the price according to grades of cotton is pretty well defined. If there had'been as much as 10 bales of strict middling, they would have been paid more than 31 cents a pound for it on a middling basis, and, if there had been some low middling, they would have been paid a little less. That would have to be figured out before settlement could be made.”
The finding of the jury as to the custom is not challenged as not being supported by the evidence; It seems to be the contention of the appellant as the vendor becomes the first actor where time is fixed for delivery, that in order to- escape liability they must have tendered the cotton on board the ears at Tahoka, and to have notified the appellant thereof. The ap-pellees did become the first аctors in assembling the cotton at that point on the -day required by the contract. The appellant had no one present at that time and place to receive or accept the cotton.
“Delivery free on board (as used in a contract fоr the delivery of goods) only means ‘the price shall be that which we stipulated for and you shall not have to pay for the wagons or carts necessary to carry the clay from the place where it is dug. We will bar all those charges and put it free on board the ship, the name of which yоu are to furnish.’ Ex parte Rosevar China Clay, 11 Ch. D. 560.”
We think the above is the meaning of the term as used in the instant contract. The grade, classification, and the selection of the cars and the route or destination of the transportation were with the buyers in this case. We quote from Dwight v. Eckert,
“Upon which of the parties to what has been termed the ‘sold note’ of January 15, 1880, rested the obligation to act first? It is a well-established principle of the law that in a contract for sale and delivery of goods ‘free on board’ vessel the seller is under no obligation to act until the buyer names the ship to which the delivery is to be made; for, until he knows that, the seller could not put the goods on board.”
The railroad in this ease was not made the agent of the buyer to grade, classify, or fix the sum to be paid for the cotton or to determine what cars should be used, the time of shipment, or the train upon which it should be shipped, or the destination of the shipment.
“Where there is nothing in the agreement to exclude the inference, the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contrаct relates, and usage is admissible for the purpose of ascertaining with greater certainty what was intended by the parties.” Dwyer v. City of Brenham,70 Tex. 30 ,7 S. W. 590 ; Heidenheimer, etc., v. Alexander,205 S. W. 458 ; Orient Mut. Ins. Co. v. Reymershoffers Sons,56 Tex. 234 .
It was therefore necessary for the appellant to have a representative at the place of delivery on the day agreed upon to grade and classify the cotton, to settle for same, and give shipping instructions according to the custom and usage of the trade. This the appellant did not do, and hence is in no position to recover on a breach of contract.
“Time may become of the essence of a contraсt for the sale of property, not only by express stipulation of the parties, but from the very nature of the property itself, and especially when it is subject to sudden, frequent, or great fluctuation in value, as in the case of mining property. Contracts for the purchase of stock are of this description, and the reason assigned is that the daily fluctuation in the price render a punctual performance of the essence of the contract. ‘If, therefore,’ said Anderson, B., ‘the thing sold be of greater or less value according to the effluxion of time, it is manifest that time is оf the essence of the contract, and a stipulation as to time must be literally complied with in equity as well as in law.” 2 Elliott on Contracts, § 1557; 4 Page on Contracts, §§ 2103, 2104.
The jury’s findings negative a breach of the contract on the part of appellees, but find appellant was not present to receive the cotton under the usage of the business. It was not necessary, as we conceive it, for appellee to have notified appellant to be present to receive the cotton or to give shipping instructions; that was the obligation resting on appellant under the contract. The evidence is sufficient to have authorized a finding by the court that all of the 100 bales was not to grade middling, but that middling was only the basis to fix the value of the grade above and below middling. There is some conflict in the evidence as to whether the appellees notified appellant’s agent that they would not deliver the cotton on the 20th. The evidence is sufficient to authorize a finding that the appellees made no such refusal. The jury find appellees were ready and willing to deliver the 100 bales of cotton on that day.
The judgment will be affirmed.
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