Lee v. Gilchrist Cotton Oil Co. , 215 S.W. 977 ( 1919 )

Findings of Fact. This suit was brought in the county court of Lampasas county, by appellee to recover damages of appellant for failure to ship three cars of cotton seed upon the following contract: "Gilchrist Cotton Oil Co. "Lampasas, Texas, 9/29/1917.

"Bought of Z. P. Lee, 3 cars of sound clean cotton seed at $69.00 per ton f. o. b. cars Jewett destination weights guaranteed. Gilchrist Cotton Oil Co. J. E. Carson, Buyer, Gilchrist Co. Co.

"Accepted: Z. P. Lee, Seller, C. B. K."

Jewett is in Leon county, Tex. The contract was written at appellant's gin in Leon county.

Appellant filed his verified plea of privilege, in proper form, to be sued in Leon county. Appellee controverted this plea under oath, alleging that under the contract sued on appellant was to deliver the cotton seed at Lampasas, Tex. The court overruled appellant's plea of privilege; to which appellant excepted, and has brought the case to this court for revision.

Opinion. Appellee objects to the consideration of appellant's brief as not being in accordance with rules. While the rules are not technically complied with in some respects, they are in spirit, in that the brief clearly presents the points relied upon for reversal with such specific references to the record as enable us to apply the facts without unnecessary labor in searching the record.

The questions determinative of this appeal are:

(1) Does the contract show upon its face, either expressly or by implication, that the cotton seed were to be delivered in Lampasas county?

(2) Was it permissible to explain the contract by oral evidence?

(3) Does the oral evidence show that the cotton seed were to be delivered in Lampasas county?

For reasons hereinafter stated, we answer each of these questions in the negative.

What was the contract? On the part of the seller, to deliver the cotton seed. On the part of the buyer, to pay for them. How was the delivery to be made? By putting the seed on board of cars. "F. o. b." means "free on board of cars." "Free" means without expense to the buyer. "On board of cars" shows how the delivery is to be made, and, in the absence of any words indicating the contrary, means at the place of sale, or the nearest station thereto. 35 Cyc. p. 108; 23 Lans. Ch. C. L. 1337; Biggers v. Hammer, 204 S.W. 493. In the instant case the place of delivery is fixed by the words "f. o. b. Jewett."

Do the words, "destination weights guaranteed," render doubtful the express provision that the delivery was to be made at Jewett? We think not. These words simply show that it was in contemplation of the parties that the cotton seed would be shipped to some point other than that at which they were received — in this instance to Lampasas — and that the weight at that point would be accepted as correct by the seller. The fact that goods were to be shipped to a certain point does not make the price payable at that point. This amounts to no more than a mere shipping direction which obligated the seller to bill the goods to that point. Bewley v. Schultz, 115 S.W. 294; McCullar v. Higginbotham, 118 S.W. 885. When goods are delivered to a carrier at the point of delivery to be transported to another point, they become the property of the buyer. The carrier becomes his agent to receive and ship them as directed.

The weight in this case was unimportant, except as determining how much the appellee was to pay. It was held in Neimeyer Lumber Co. v. Burlington M. R. R. Co., 54 Neb. 321, 74 N.W. 670, 40 L.R.A. 534, that the words in the contract, "price f. o. b. Omaha," related only to the price to be paid, and not to the point of delivery. We hold that evidence seeking to vary, by proof of custom, the well-established meaning of the words "f. o. b.," was inadmissible. Sheffield Furnace Co. v. Hull, 101 Ala. 446,14 So. 672.

Does the oral testimony, admitted by the court over appellant's objection, show that appellant was to deliver the cotton seed at Lampasas? We think not. The only testimony on this point was by Carson, who made the contract on the part of appellee, and is as follows:

"I have bought a good many cotton seed, and am familiar with contracts of this kind. Among oil mill men, the words in the contract, `f. o. b. cars Jewett,' mean that they were to be delivered on the cars at Jewett without cost to the buyer, but the buyer was to pay the freight to destination. The words, `destination weights guaranteed,' in the contract mean that the three cars were to be delivered at Lampasas, in Lampasas county."

"Were to be delivered at Lampasas," by whom? The witness did not state. He who claims the benefit of an exception must bring himself clearly within such exception. Cohen v. Munson, 59 Tex. 237; Chamberlain v. Fox,54 S.W. 297.

In view of the well-established meaning of the letters "f. o. b. cars Jewett," the cotton seed were to be delivered at Jewett by appellant to the railway company, as agent for appellee, in the sense that they would thereby become the property of appellee. This is the contract which it is alleged that appellant breached. If so, the breach occurred at Jewett. By the statement, "The words, `destination weights guaranteed,' mean that the three cars of cotton seed were to be delivered at Lampasas," the witness must be presumed to have meant that the cotton seed were to be transported to Lampasas, rather than that those words, by implication, contradicted the plain words of the contract as to the place of delivery. It was contemplated by the contract that the cotton seed were to be delivered at Lampasas, in the sense that they were to be transported to Lampasas, but not by appellee, nor for him as being his property. He did not obligate himself to deliver the cotton seed at Lampasas, but only that he would bill them to that place. Lumber Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W, 53.

We sustain appellant's assignments of error to the effect that the court erred in construing the contract to mean that appellant was to deliver the cotton seed at Lampasas, and in holding that the venue was properly laid in Lampasas county.

In view of this holding, the other assignments of error become immaterial.

For the reasons stated, the judgment herein is reversed, with instructions to the trial court to transfer this case to the county court of Leon county.

Reversed, with instructions.

On Motion for Rehearing. Appellee on motion for rehearing cites Lumber Co. v. Taylor,59 Tex. Civ. App. 442, 126 S.W. 53, as authority for the proposition that f. o. b. cars "merely indicates that the purchaser is to pay the freight to the point mentioned." Witnesses in that case so testified. The courts hold otherwise. However, it was immaterial in that case whether or not f. o. b. meant that delivery was to be made at the point mentioned. No delivery was made. The seller sued the buyer, who lived in Dallas county, for the purchase price, which he did not agree to pay in Harrison county, nor elsewhere, if the lumber was never delivered to him.

Appellee also cites Burkitt v. Berry, 143 S.W. 1188. That case is not in point. It merely holds that an agreement to deliver goods at a certain place does not fix such place as the place of payment.

We would not have perhaps reversed thin case alone upon the insufficiency of the testimony of the witness Carson, but what we stated in our opinion herein is the rule as to the necessity of a party who claims the benefit of an exception to bring himself clearly within such exception.

Motion overruled.

Overruled.