Dempster Mill Mfg. Co. v. Humphries

Court of Appeals of Texas

Dempster Mill Mfg. Co. v. Humphries

202 S.W. 981, 1918 Tex. App. LEXIS 352

CourtCourt of Appeals of Texas

DecidedApril 4, 1918

DocketNo. 832.

StatusPublished

Cited by1 cases

This text of 202 S.W. 981 (Dempster Mill Mfg. Co. v. Humphries) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dempster Mill Mfg. Co. v. Humphries, 202 S.W. 981, 1918 Tex. App. LEXIS 352 (Tex. Ct. App. 1918).

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Opinion

WALTHALL, J.

[1] The several letters of Humphries to the company clearly show a ratification of the contract of purchase of the pumping plant described in the order. We think it is quite clear also that, while Humphries.refused to accept the plant under the first order, made at Sentinel, Okl., and the final consummation of the sale and delivery of the pumping plant, the execution of the notes and mortgage took place at Toyah, Tex., the transaction, as we construe it, was really an adjustment and conclusion of the sale commenced, but left undetermined by his refusal to accept the plant under his first order made at Sentinel, Okl. His agreement with Eck was that in the event he concluded to accept the plant he would “take it upon the same-terms stipulated in the original order,” and did so. While the plant was then on his ranch near Toyah, he made the second order similar to the first one, thus, in effect, substituting the second order for the first.

[2] Had Humphries accepted the plant under the first order, there could be no question but that the transaction was interstate commerce. The trial court dismissed the case, evidently on the theory that the interstate character of the transaction terminated on Humphries’ refusal to accept the plant after it reached Toyah, as he had the right to; his order not having been delivered by him to the company. But should we be in error in the interpretation of the facts as stated above, and should it be held that the transaction was not wholly an adjustment, and a consummation of the purchase of the plant commenced by the first order, and if it should be that the sale of the plant had its initiative on the arrival of Eck at Toyah, and that the sale of the plant was wholly made at Toyah, could it in that event be said that the transaction was not interstate commerce? We think not under the facts.

It is not shown that the company desired to transact business in this state other than to adjust the one transaction, or solicit business in this state, or established a general or special office in this state. Appellee has referred us to a number of authorities as sustaining his contention that the transaction was intrastate. We have very carefully read and analyzed each of the eases, and many others not referred to, and conclude that they do not so hold.

The case of Norton v. W. H. Thomas & Sons Co., 93 S. W. 711, in which a writ of error was denied by the Supreme Court, is more, we think, in point with the facts of this ease than any we have examined. We think our conclusion is sustained also by the cases of Shaw Piano Co. v. Ford et al., 41 S. W. 198, and King v. Monitor Drill Co., 92 S. W. 1016. In the case of Miller et al. v. Goodman, 91 Tex. 41, 40 S. W. 718, the facts are somewhat similar to this case. In that case Judge Brown, speaking for the Supreme Court, said:

“It is a case of sale by a corporation, created by another state, of goods manufactured in that state, and shipped into the state of Texas. It matters not whether the goods were sold before they were shipped, or shipped to the state and then sold. It is equally interstate commerce”

—and refers to Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128.

The one fact submitted by the trial court to the jury, Did Humphries, at Sentinel, Okl., buy from and instruct appellant to ship the pumping plant to him at Toyah? was undisputed. The suit was not based on that contract, and it was only an evidentiary fact in the case.

[3] Appellant alleges that it used due diligence to collect the note given as collateral security, was unable to do so, and in its *983 pleading tendered the note to appellee. Ap-pellee alleges that the note is barred by limitation, but the several letters from the maker of the note to appellee, and read in evidence, would, in this state, prevent the bar of the statute. The maker of the note is a resident of Oklahoma, and the note is made payable in that state. We are not informed by the record of what the law of Oklahoma is, and must presume it to be the same as our own.

Appellee, in his brief, states that, if the transaction shown was interstate commerce, appellant had the right to maintain the suit, and we are of the opinion that it was. The ratification by appellee of the sale was alleged by appellant, and the undisputed evidence showing that it was, there is no undetermined fact remaining to be tried.

The ease is reversed, and judgment is here rendered for appellant for the amount sued for, and for a foreclosure of its lien on the plant and its equipment. It is further ordered that appellant surrender to appellee the collateral note that it holds, signed by E. L. Harris.

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WALTHALL, J.

[1] The several letters of Humphries to the company clearly show a ratification of the contract of purchase of the pumping plant described in the order. We think it is quite clear also that, while Humphries.refused to accept the plant under the first order, made at Sentinel, Okl., and the final consummation of the sale and delivery of the pumping plant, the execution of the notes and mortgage took place at Toyah, Tex., the transaction, as we construe it, was really an adjustment and conclusion of the sale commenced, but left undetermined by his refusal to accept the plant under his first order made at Sentinel, Okl. His agreement with Eck was that in the event he concluded to accept the plant he would “take it upon the same-terms stipulated in the original order,” and did so. While the plant was then on his ranch near Toyah, he made the second order similar to the first one, thus, in effect, substituting the second order for the first.

[2] Had Humphries accepted the plant under the first order, there could be no question but that the transaction was interstate commerce. The trial court dismissed the case, evidently on the theory that the interstate character of the transaction terminated on Humphries’ refusal to accept the plant after it reached Toyah, as he had the right to; his order not having been delivered by him to the company. But should we be in error in the interpretation of the facts as stated above, and should it be held that the transaction was not wholly an adjustment, and a consummation of the purchase of the plant commenced by the first order, and if it should be that the sale of the plant had its initiative on the arrival of Eck at Toyah, and that the sale of the plant was wholly made at Toyah, could it in that event be said that the transaction was not interstate commerce? We think not under the facts.

It is not shown that the company desired to transact business in this state other than to adjust the one transaction, or solicit business in this state, or established a general or special office in this state. Appellee has referred us to a number of authorities as sustaining his contention that the transaction was intrastate. We have very carefully read and analyzed each of the eases, and many others not referred to, and conclude that they do not so hold.

The case of Norton v. W. H. Thomas & Sons Co., 93 S. W. 711, in which a writ of error was denied by the Supreme Court, is more, we think, in point with the facts of this ease than any we have examined. We think our conclusion is sustained also by the cases of Shaw Piano Co. v. Ford et al., 41 S. W. 198, and King v. Monitor Drill Co., 92 S. W. 1016. In the case of Miller et al. v. Goodman, 91 Tex. 41, 40 S. W. 718, the facts are somewhat similar to this case. In that case Judge Brown, speaking for the Supreme Court, said:

“It is a case of sale by a corporation, created by another state, of goods manufactured in that state, and shipped into the state of Texas. It matters not whether the goods were sold before they were shipped, or shipped to the state and then sold. It is equally interstate commerce”

—and refers to Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128.

The one fact submitted by the trial court to the jury, Did Humphries, at Sentinel, Okl., buy from and instruct appellant to ship the pumping plant to him at Toyah? was undisputed. The suit was not based on that contract, and it was only an evidentiary fact in the case.

[3] Appellant alleges that it used due diligence to collect the note given as collateral security, was unable to do so, and in its *983 pleading tendered the note to appellee. Ap-pellee alleges that the note is barred by limitation, but the several letters from the maker of the note to appellee, and read in evidence, would, in this state, prevent the bar of the statute. The maker of the note is a resident of Oklahoma, and the note is made payable in that state. We are not informed by the record of what the law of Oklahoma is, and must presume it to be the same as our own.

Appellee, in his brief, states that, if the transaction shown was interstate commerce, appellant had the right to maintain the suit, and we are of the opinion that it was. The ratification by appellee of the sale was alleged by appellant, and the undisputed evidence showing that it was, there is no undetermined fact remaining to be tried.

The ease is reversed, and judgment is here rendered for appellant for the amount sued for, and for a foreclosure of its lien on the plant and its equipment. It is further ordered that appellant surrender to appellee the collateral note that it holds, signed by E. L. Harris.

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