3. โ Cases Qualified. The following cases, for conflict of which with the ruling herein writ of error was granted, are, it seems, hereby materially qualified, if not overruled. Levy v. Lupton, 156 S.W. 363; American Warehouse Co. v. Ray, 150 S.W. 764; Ward v. Odem, 153 S.W. 634. (Pp. 508, 509). 4. โ Statement of Facts โ Copying into Transcript.
The effect of the non-warranty, in its broadest application, would be to protect the company from damage resulting from the planting of any seed it might send out, that is, crop damage. Jones v. George; Handy v. Roberts (Civ. App.), 165 S.W. 37; Markham Warehouse Elevator Co. v. Plotner Stoddard (Civ. App.), 140 S.W. 356; Harkey v. Hindman (Civ. App.), 19 S.W.2d 151; American Warehouse Co. v. Ray (wr. ref.), 150 S.W. 763; Cheboygan Paper Co. v. Eichberg, 184 Mich. 30, 150 N.W. 312. Judge Fly in the Plotner Stoddard case quoted from Columbian Iron Works v. Douglass 84 Md. 44, 34 A. 1118, the holding that in case of delivering any article other than that which "was the named and designated, the specific and identical, thing contracted for * * *," the buyer had "the right to insist on the terms of his contract.
" Hobdy v. Siddens, 198 Ky. 195, 248 S.W. 505. See American Warehouse Co. v. Ray (Tex.), 150 S.W. 763; National Seed Co. v. Leavell, 202 Ky. 438, 259 S.W. 1035. We have been favored with an exhaustive brief by plaintiff's counsel, but we regard their citations as distinguishable, or as not in consonance with the reasoning of cases we prefer to follow.
Where a party contracts to sell seed of a given kind and knows that the buyer intends to plant the same and is relying upon him to furnish the seed, and the seller does not furnish the seed and the buyer cannot secure the same in time for planting and plants another seed to minimize the loss, the measure of damages is the difference between the net value of the crop that would have been raised had the seed been furnished and the net value of the crop produced. ( Nelson v. Intermountain Farmers' Equity, 36 Idaho 518, 211 P. 550; Vaughan's Seed Store v. Stringfellow, 56 Fla. 708, 48 So. 410; Cline v. Mock, 150 Mo. App. 431, 131 S.W. 710; American Warehouse Co. v. Ray, (Tex.) 150 S.W. 763; Dunn v. Bushnell, 63 Neb. 568, 93 Am. St. 474, 88 N.W. 693; Heilman v. Pruyn, 122 Mich. 301, 303, 80 Am. St. 570, 81 N.W. 97; Hodgkins v. Dunham, 10 Cal.App. 690, 103 P. 351; Kefauver v. Price, 136 Ark. 342, 206 S.W. 664; Newhall Land Farming Co. v. Hogue-Kellogg Co., 56 Cal.App. 90, 204 Pac. 562; Hobdy Read v. Siddens, 198 Ky. 195, 248 S.W. 505; Sutherland on Damages, 14th ed., p. 2439.) ADAIR, District Judge.
) The bill of exceptions to the interlocutory overruling of the plea of privilege for change of venue not having been taken until a later term, after several intervening terms, came too late to be considered, Marshall v. Spillane, 27 S.W. 162; Waco lee Refrigerating Co. v. Wiggins, 32 S.W. 58; Levy v. Lupton, 156 S.W. 362; Am. Warehouse Co. v. Ray, 150 S.W. 763; 3 Ency. of Pl. Pr., p. 466. MR. CHIEF JUSTICE PHILLIPS delivered the opinion of the court.
It occurred either in Illinois or in Dallas, and it is not necessary for us to determine which of the two places it occurred in deciding this case. American Warehouse Co. v. Ray, 150 S.W. 763 (Tex.Civ.App., San Antonio, 1912, writ ref.); El Paso & S.W . R. Co. v. Eichel & Weikel, 130 S.W. 922 (Tex.Civ.App., 1910, er. ref.); and McCaskill v. Clay, 284 S.W. 643 (Tex.Civ.App., Amarillo, 1926, no writ hist.). The following is from the American Quarter Horse Association v. Rose, supra, at p. 231: "In our opinion the argument confuses injury caused by the breach of contract by AQHA with the breach itself.
It has been held that if an agreement upon all the terms of a contract has been reached by the parties with nothing remaining to be done except to reduce its terms to writing, the contract is complete, unless it was further agreed that the contract was not to become effective until it was reduced to writing, and a breach of the contract by either party causing damage to the other, when no such condition existed, will support an action for damages. American Warehouse Co. v. Ray, Tex. Civ. App. 150 S.W. 763 (writ refused) and other authorities there cited. According to the findings of the jury in the instant case appellant and appellee entered into an agreement upon all the terms of the contract and there was no agreement made that it should not become effective until reduced to writing.
It therefore becomes apparent that the proper measure of damages has been applied in this case. Tex.Jur., Vol. 13, p. 103; Austin Mill Grain Co. v. Lambert, Tex. Civ. App. 245 S.W. 767; Itasca Roller Mill Elevator Co. v. Wooten, Tex. Civ. App. 246 S.W. 678; American Warehouse Co. v. Ray, Tex. Civ. App. 150 S.W. 763, 765; Johnson v. Foley Milling Elevator Co., 147 Minn. 34, 179 N.W. 488, 16 A.L.R. 856. Appellant next contends that the evidence shows that the seed bought from appellant were planted on the same ground with seed bought from other sources and that, therefore, there was no possible way for the jury to tell what percentage of the crop was produced from seed purchased from appellant, and that the jury's verdict was based upon pure surmise, guesswork and conjecture.
Custom is never admissible, or read into a written instrument, to contradict what is there plainly stated, and especially would that be so where the parties have expressly, or by necessary implication excluded a custom or usage of trade. We think the above is clearly sustained by the following authorities: First Nat. Bank v. Lancashire Ins. Co., 62 Tex. 461; Harrell v. Zimpleman, 66 Tex. 292, 17 S.W. 478; Freeman v. Morrow (Tex.Civ.App.) 156 S.W. 284, in which a writ of error was refused; Planters' Oil Co. et al. v. Greshan (Tex.Civ.App.) 202 S.W. 145; R. R. Co. v. Fagan, 72 Tex. 127, 9 S.W. 749, 2 L.R.A. 75, 13 Am.St.Rep. 776; American Warehouse Co. v. Ray (Tex.Civ.App.) 150 S.W. 763; Orient Mutual Ins. Co. v. Wright, 1 Wall. 456, 17 L.Ed. 505; 1 Greenleaf, Ev. ยง 292; 2 Pars.Con. 59; Bliven v. N.E. Screw Co., 23 How. (64 U.S.) 431, 16 L.Ed. 513. The contract before us mentions no custom, usage, or rule of brokers or the trade, and, so far as the evidence discloses, except such as was discussed between Ainsa and the broker at the time the broker presented the written contract to Ainsa for signature, and of which discussion or assurance on the part of the broker, or the interpretation of the phrase under discussion by the broker, appellant seems not to have been informed, and, so far as it otherwise appears, the contract was not made with reference to any custom, usage, rule of brokers or the trade, in contemplation.
In the case of Texas Co. v. Earles (Tex.Civ.App.) 104 S.W. 28, Judge Talbot of this court says: "It is within the discretion of the trial court to permit a trial amendment of the plaintiff's petition whether exceptions to the original petition had been sustained or not (American Warehouse Co. v. Ray, 150 S.W. 763), and the mere failure to replead if the case is not then tried, as directed by rule 27 for district and county courts (142 S.W. xix) should not work a reversal of the case." The admission by the court of the evidence of T. D. Starnes regarding an agreement that he had with Tom Dies, representative of the Gulf Pipe Line Company, relative to the furnishing of the policy of the insurance for use in evidence, is not subject to the criticism contained in appellant's seventh assignment.