McDonald v. Webb

510 S.W.2d 670
CourtCourt of Appeals of Texas
DecidedJune 6, 1974
Docket870
StatusPublished
Cited by8 cases

This text of 510 S.W.2d 670 (McDonald v. Webb) 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.

Bluebook
McDonald v. Webb, 510 S.W.2d 670 (Tex. Ct. App. 1974).

Opinions

OPINION

BISSETT, Justice.

This is a breach of contract case. Stanley Webb, III, et al, sued D. T. McDonald et al, for breach of three contracts for the sale and purchase of cotton produced during the 1972 crop year on plaintiffs’ land in San Patricio County, Texas. Following a jury trial, judgment was rendered for plaintiffs in the amount of $13,209.10. Defendants have appealed.

The jury, in response to the two special issues that were submitted, found 1) that the plaintiffs properly harvested the cotton, and 2) that the loss sustained by plaintiffs was $13,209.10. There were no objections to the court’s charge, and no one requested any other special issues.

Defendants’ points of error may be grouped into four categories. First, they complain that the verdict is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong, in that the evidence showed 1) that plaintiffs breached the contracts themselves and cannot recover; 2) that plaintiffs did not properly harvest the cotton in question; and 3) that plaintiffs sought to deliver cotton grown on acreage other than that subject to the contracts (points 1, 2 and 3). Second, complaint is made (points 4 and 5) that the trial court erred 1) in per[672]*672mitting the witness Don Horn to testify as an expert when no proper predicate was laid and he expressly testified that he was not an expert; and 2) in refusing to allow the defendant D. T. McDonald to testify about the spot market cotton on the basis of accepted reports used in the industry. Third, it is contended that the trial court erred in rendering judgment for plaintiffs because the verdict was insufficient to support the judgment since plaintiffs failed to obtain findings on compress charges and light and heavy weight penalties (point 6). Fourth, defendants assert that the trial court erred in rendering judgment for plaintiffs which did not deduct $1.00 per bale required by the contract (point 7).

In deciding this case, we have reviewed all of the evidence. In determining whether the overwhelming weight and preponderance of the evidence is in favor of or against the verdict, we are guided by the rules laid down in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965), in Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958), and in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The contracts sued upon in this case were executed by plaintiffs, as sellers, and by defendants, as purchasers, on January 20, 1972. They provided that plaintiffs would plant a total of “400 plus acres” in cotton on the farms covered by the three contracts, and would sell and deliver to defendants the “entire cotton production” from the acreage covered by the contracts. The terms and conditions in the contracts that have a bearing on this appeal read, as follows:

“1. GRADES : All grades that are eligible for the 1972 cotton crop loan.
2. PRICE: 33.00 cents per pound, net weight.
3. ALL BG 27‡
4. All charges at the compress along with light and heavy weights penalties will be deducted. The $1.00 per bale for the Cotton Producers Institute will be deducted in the usual manner.
5. . . . It is the sellers responsibility to see the cotton is properly harvested and ginned . . . ”

Plaintiff produced. 225,611 pounds of lint cotton (475 ginned bales) from the contract acreage, and tendered to defendants their entire production. Defendants refused to accept any of the cotton for the reason that it was of inferior grade.

Plaintiffs then endeavored to sell the cotton on the open market for 330 per pound, but were unable to do so. They put it in the “government loan”, where it remained for several months. Plaintiffs incurred the following expenses in connection with the loan:

1. Compress and storage charges $1,425.00
2. Government fees 73.95
3. Interest 429.60
TOTAL $1,928.55

Later on, the cotton was withdrawn from the loan and was sold to third parties for 28⅜ per pound.

The plaintiff Stanley Webb, III testified that he planted a total of 400 acres in cotton on the three farms affected by the contracts. The certificate which he filed with the local office of the Agricultural Stabilization and Conservation Service of the United States Department of Agriculture certified that 488 acres were planted in cotton. Defendants contend that the planting of 88 acres in excess of the 400 acres contracted for amounted to a breach of contract that relieved them from performing thereunder in that plaintiffs tendered to them substantially more bales than defendants contracted to purchase. That contention cannot be sustained. The contract called for “400 plus acres”, and did not put a limit of 400 acres on the cotton acreage.

[673]*673The intitals “BG”, as found in paragraph 3 of the contract, are an abbreviation of “below-grade”. Cotton of that grade was not eligible for the “government loan” in 1972. Mr. Glen Drachenberg, the Executive Director of the Agricultural Stabilization and Conservation Service of the United States Department of Agriculture’s office at Sinton, Texas, testified that all 475 bales of cotton produced by plaintiffs in 1972 were eligible for the 1972 cotton crop loan, were accepted by the government, and were placed in the government loan. He further testified that there were no bales “below-grade”.

The only witness called by defendants was the defendant D. T. McDonald. He testified that he looked at “150 or 200” bales of cotton at the gin and there was “bark and grass in the cotton”. He considered the cotton to be “below-grade”. A document that was prepared by the plaintiff Stanley Webb, III, which showed 184 bales of cotton had bark in them, was introduced in evidence. Six samples of plaintiff’s cotton and three samples of cotton produced by a third party were introduced in evidence in order that the jury might note the difference in the grade reflected by the samples from plaintiff’s cotton and that of the third party’s cotton.

Plaintiff Stanley Webb, III, testified at length with respect to the manner in which he harvested the cotton. He told the jury that he used commonly accepted harvesting methods in his community to harvest the cotton, and that none of the ginned cotton was “below-grade”. There was a considerable amount of rain during harvest time. The cotton was harvested by a mechanical cotton “stripper”. Seventy-five to eighty per cent of the cotton that was harvested in the area of plaintiffs’ farms for the year 1972 was harvested by cotton strippers. Plaintiff commenced harvesting the cotton about August 15, 1972 "and completed the harvest about August 29, 1972. Mr. Don B. Horn, a farmer who farmed a tract of land adjoining one of plaintiffs’ farms, was called by plaintiffs as a witness. He testified that he had a B.S. Degree in Agriculture from Texas A & M University, and that he had been raising cotton for fifteen years.

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McDonald v. Webb
510 S.W.2d 670 (Court of Appeals of Texas, 1974)

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510 S.W.2d 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-webb-texapp-1974.