Opinion
No. 1840.
January 21, 1926.
Appeal from District Court, Jeff Davis County; C. R. Sutton, Judge.
Action by Mack Camp against W. D. Casey. Judgment for plaintiff, and defendant appeals. Affirmed.
Harper Howard, of El Paso, for appellant.
Ben Randals and Starley Russell, all of Pecos, for appellee.
Camp sued Casey to recover damages caused by the breach of an alleged executory contract for the sale of certain calves by Casey to Camp. The case was tried without a jury, and judgment rendered in Camp's favor for $1,145.50, from which the defendant appeals.
It was alleged by the plaintiff that he agreed to buy, and the defendant agreed to sell to him, 158 head of calves at 4 1/2 cents per pound, weighed at El Paso, Tex.; that the defendant placed the calves in the railroad pens at Toyah, Tex., for shipment to El Paso, to be weighed and delivered to plaintiff and paid for, and then refused to so ship and deliver the same; that the market value in El Paso was 7 1/2 cents per pound. The plaintiff's evidence supports these allegations, except as to the value in El Paso, which it shows was 7 cents per pound.
Without discussing the assignments and propositions in detail, our conclusions disposing of the same are as follows:
While it is not specifically averred that the calves were to be delivered to the plaintiff in El Paso, yet the clear import of the petition is to that effect, and the plaintiff's testimony is that delivery was to be made there. All the evidence shows that the settlement was to be based upon the weight in El Paso. Under these circumstances, the proper measure of damages was based upon the difference between the contract price and the market value in El Paso. The fact that defendant breached the contract at Toyah by refusing to ship to El Paso does not affect the question. The mere fact that the defendant testified that delivery was to be made at Toyah, while the plaintiff testified that it was to be made at El Paso, does not conclusively show a failure of the minds of the parties to meet. It simply presents a conflict in the evidence as to the terms of the contract, which the trial court resolved in the plaintiff's favor.
The case does not present any question of conversion by the defendant. The title to the calves never passed, because delivery was never made. The evidence shows a breach of an executory contract of sale, and the plaintiff has not mistaken his remedy.
This case is purely one of fact, in which the trial court has resolved all issues in favor of the plaintiff. In this state of the record, and upon the conclusions stated above, none of the questions presented by appellant have any merit.
The judgment is therefore affirmed.
Affirmed.