Peterson v. Graham-Brown Shoe Co.

210 S.W. 737, 1919 Tex. App. LEXIS 437

• Court: Court of Appeals of Texas
• Decided: January 29, 1919
• Docket: No. 6151
• Status: Published

Opinions

PLY, C. J.

Appellant sued to recover of appellee damages in the sum of $384 arising from a failure and refusal to deliver certain shoes which it had contracted to deliver in January, 1917. The cause was submitted on «pecial issues, and on the answer to the first question, the others being unanswered, judgment was rendered against appellant.

The first issue submitted was:

“Did plaintiff and defendant enter into a contract whereby defendant contracted to sell to plaintiff a certain lot of shoes and bound itself to deliver the same to plaintiff at San Antonio, Tex., .during the month of January, 1917, freight prepaid, as alleged in plaintiff’s petition?”

The answer was “No,” and consequently there was no necessity for answering any other issues, as the jury were informed by the court. The only testimony introduced was that of appellant, who testified that on September 7, 1916, he entered into a contract with appellee, evidenced by the following written order:

The contract was made by appellant with one Rhodes, a salesman for appellee. It was admitted in the answer of appellee that the order was received by appellee, and It sought to evade the force of the contract by alleging a custom as to how such contracts were treated. The answer alleged:

“That under the order involved in this suit plaintiff had the right to withhold payment on same until the 1st day of August, 1917, with the option to pay for the same on or before the 1st day of May, 1917, and receive a 5 per cent, discount. That said order was received in good faith by this defendant, having in mind the usual course of dealing between the parties, and pending the delivery of such order should live up to, his previous obligations and pay for the other goods ordered and delivered as such payments became due.”

There was an admission of the order being given and accepted, and yet the jury found that there was no contract, and the trial •court rendered judgment based on that finding.

There was a virtual admission that the contract was made as alleged by appellant, and the uncontroverted evidence proved it, and the court should not have submitted the question of the existence of the contract to the jury.

[1, 2] No notice was given appellant that the order would not he filled. To have repudiated the order of its agent, the repudiation should have been made in a reasonable time by appellee.

The judgment is reversed, and the cause remanded.

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