Battle v. Mack , 33 Tex. 795 ( 1871 )

Walker, J.

In 1859 Blum & 'Mayblum were commission merchants, residing and doing business at Richmond, Texas. Zeno P. Walker was a planter, residing in Wharton ccunty. He had raised one hundred and fifty-four bales of cotton, which he delivered to Blum & Mayblum, to be shipped to New York for sale. They consigned the cotton to Nelson, Clements & Co., New York, who sold one hundred and thirty bales of it to one Dixie; the remaining twenty-four bales were sold to other parties, and nothing more is heard of them. Dixie shipped the one hundred and thirty bales to Liverpool, consigned to McLean, Morris & Co., who sold the cotton, but to whom we are not informed. It is a principle of the law that when goods are sold by sample the invoice must correspond with the sample, but it does not appear from the evidence in this ease that this cotton was so sold. It was charged in the original petition that when the cotton came to be examined it was found to be falsely packed, but the evidence by no means satisfies . us of the identity of the cotton.

The testimony of one witness, who superintended the packing of Walker’s cotton, proves positively .that there was no false packing, and that Walker’s cotton was good and merchantable. It appears, however, that the last purchaser of the cotton claimed damages from McLean, Morris & Oo. to the amount of about seven hundred and fifty dollars, which they claim to have paid, on the ground that the cotton was found to be “ false packed.”

And this sum appears to have been refunded, from hand to hand, hack to Blum & Mayblum, who also claim to have paid the money to Nelson, Clements &'Co., their New York consignees. Prior to the payment by Blum & Mayblum, they had settled their accounts with Zeno P. Walker, and he had died.

The claim does not appear ever to have been litigated, nor any higher evidence of its validity required than a mere certificate, handed back from merchant to merchant under what, it is claimed, was a custom among merchants' in like cases.

If such be true, no like custom of merchants has yet acquired the force of law in this country. At one time Blum & Mayblum were the agents of Zeno P. Walker. Their agency continued as a special agency until the object of its creation had been accomplished ; and for all legitimate purposes connected with the shipment of these hundred and fifty-four hales of cotton, it mav have continued until the death of Zeno P. Walker, hut certainly no longer. The death of the principal revoked the agency, and it cannot be contended that the controversy here is one between principal and agent, and to be settled by the law governing like cases. Walker having died before the commencing of this suit, Leticia N. Walker; yIio has intermarried with Charles J. Battle, is now the party to this suit. Mayblum is the successor to Blum & Mayblum, and Simeon Mack is the assignee in bankruptcy of Mayblum. On tbe trial in the district court a jury was waived by both parties, and we are left to render such judgment in tbe premises as we think tbe district court should have rendered, and upon the following authorities, cited from the-briefs of plaintiffs in error: Bell county v. Hugh Alexander et al., 22 Texas Reports, page 350; Story on Agency, third edition, §§ 108, 336, 341, 349, 473, 488 and note; Smith’s Mercantile Law (Holcomb & Gbolson’s edition), pages 153, 183 and 195; 2 Kent’s Commentaries (marginal), page 646, forty-first lecture; Hunt v. Rousmanier, administrator, Condensed Reports of the Supreme Court of tbe United States, 5 Wheaton, page 401 (properly 8 Wheaton); Riggs et al. v. Cage, 2 Humphrey’s Tenn. Reports, page 350, the judgment of the district court is reversed, and the cause dismissed.

Reversed and dismissed.