Theo. Ollesheimer & Bro. v. Foley

95 S.W. 688, 42 Tex. Civ. App. 252, 1906 Tex. App. LEXIS 238

• Court: Court of Appeals of Texas
• Decided: March 7, 1906
• Status: Published

Opinion

NEILL, Associate Justice.

This suit was brought upon a verified account for the price of goods alleged to have been ordered by the appellee and sold and delivered him by appellants. It was alleged that appellee ordered the goods, which were to be manufactured expressly for him in Europe and imported by appellants, and that at the time the order was given there was a general known custom of trade, of which appellee had notice, that an import order such as the one in question was not subject to countermand.

Among the matters plead by appellee was, that long prior to the time the goods were shipped he had countermanded the order therefor by instructing appellants not to ship them, notifying them that he would not receive or accept such merchandise if shipped.

The evidence, was sufficient to sustain the trial court in finding that the matters so pleaded by appellee were proven.

It is well settled that one party to an executory contract has always the right, subject to the obligation to pay damages to the other, to stop the performance of the contract whenever for any reason he deems it to his interest to terminate it, and the other party is not at liberty to proceed thereafter with the performance in order to enhance the damages to be paid. (Mecham on Sales, sec. 1699.) That this principle applies with peculiar force to an executory sale, such as the one under consideration, is shown by the same authority. (Sections 1091, 1700, 1701, 1702 and 1703.)

The rule, pertaining to usages of trade or business, that parties are presumed to contract in reference to a uniform, continuous, and well-settled usage pertaining to the matters as to which they enter into agreement, is limited to such usage as is not in opposition of well-settled principles of law and is not unreasonable. (Markham v. Jaudon, 41 N. Y., 235; Bowen v. Newell, 8 N. Y., 190; Groat v. Gile, 51 N. Y., 431.) This case is clearly within the limitation of such rule, and not affected by it. The judgment is affirmed.

Affirmed.