Fore v. Border Queen Milling Co.

192 S.W. 1163, 1917 Tex. App. LEXIS 196, 1917 WL 297

Opinion

WILLSON, C. J.

In his petition Fore, the plaintiff below, alleged that the milling company sold him certain flour and undertook to deliver same to him at times during the months of October and November, 1915, to be specified by him. He further alleged that the milling company failed to comply with its undertaking. His suit was to recover as damages he averred he suffered by such failure, the difference, alleged to be $842.40, between the contract price of the flour and its market value at the time and place it was to have been delivered to him. At the time he commenced the suit Fore caused writs of garnishment to be issued and served on certain railway companies, whereby he impounded in their hands two carloads of flour belonging to the milling company. The latter by a cross-action sought a recovery against Fore of damages it alleged it suffered because of the impounding of the flour. The appeal by Fore is from a judgment denying him a recovery of anything against the milling company and awarding it a recovery of $207.50 against him. This court has considered, in connection with the record, the assignments in Fore’s brief, and is of the opinion none of them presents a reason why the judgment should be reversed. But the court is of the opinion the judgment should be so reformed as to provide that it shall be without prejudice to Fore’s right, if any he has, to recover against the mill ing company the $936.72 which he alleged the milling company agreed to pay him on account of the car of flour it shipped to him at Omaha, and covered, he further alleged, by a. draft drawn by him on said milling company in favor of the Pittsburg National Bank. The judgment will be reformed accordingly, and, as so reformed, will be affirmed.