A. Fox & Bro. v. P. J. Willis & Bro., 60 Tex. 373

West, Associate Justice. The action of the district court in permitting the witness Hutchins to detail the conversation between himself and the insolvent vendee, notwithstanding the objections interposed by the appellants at the time, was error, and was calculated, under the circumstances of this particular case, to seriously prejudice the rights of the appellants in reference to the main issues then before the jury.

The appellants were not present when it occurred, were entire strangers to It, and could no more, under the circumstances, be affected by it than they could by the remarks of any other third person made behind their backs in relation to their business affairs. Such declarations as those alleged to have been made to this witness, under such circumstances, by a third person, in the absence of the appellants, are mere hearsay, and carry no weight with them, as evidence, in a court of justice. Carleton v. Baldwin, 27 Tex., 572; Crippen v. Morss, 49 N. Y., 63; Quinlan v. Davis, 6 Whart., 169.

The court also committed an error in that portion of the charge in which it gave the jury to understand that the right of stoppage in transitu existed in the appellees not only in the event of the insolvency of the vendee, but also existed, and might be exercised by the vendors, for “ other adequate cause.” The Constantia, 6 Rob. Adm., p. 321; Bacon’s Abr., “Merchant” (L); Wood v. Roach, 2 Dall., 180.

Story, in his work on Contracts, speaking of this right of the seller, says: “ Inasmuch as it is a privilege allowed to the seller for the express purpose of protecting him against the insolvency of the buyer, he cannot exercise it unless the buyer be insolvent.” 2 Sto. on Con., sec. 817; Benjamin on Sales, book 5, ch. 5, p. 639 (2d ed.); Anson on Contracts, marg. p. 216; Gibson v. Caruthers, 8 M. & W., 339.

For the court, under the facts in evidence in this case, to inform the jury that the right of stoppage in transitu existed for other causes than insolvency, without at the same time specially explaining to the jury what was meant and understood by the court in that connection by the use of the words “ other adequate cause,” was well calculated to mislead the jury and prejudice the case of appellants.

There are also other portions of the charge of the court that presented the issues in the case in a manner somewhat unfavorable to appellants, especially some portions'of the seventh and eighth paragraphs ; but as for the errors above indicated the case will be reversed, it is not deemed necessary to comment on them or on certain other portions of the main charge that are not free from criticism. The law in general governing this case and cases of a like character of stoppage in transitu has been already to some extent explained and applied in the case of Halff, Weiss & Co. v.

Allyn & Co., decided at this term, which case grew out of the same transaction as the present. The same doctrine was also practically announced by this court in the case of Chandler v. Fulton, 10 Tex., 2. There is an important question presented in this case, however, as to the waiver by appellees of their right of stoppage in tranisitu, that did not arise in the case of Halff, Weiss & Co. v. Allyn & Co., nor in the case of Chandler v. Fulton.

Here the parties, after arriving on the ground, and making some inquiry, and informing themselves, as the record discloses, to a considerable extent, as to the actual condition of things, made their election, and instituted a suit for the recovery of the value of the goods sold to the insolvent debtor, and in that suit caused writs of attachment against the property of the debtor to be issued to the counties of Navarro and Ellis, and under these writs attached property of the insolvent buyer.

This action of theirs, it is strongly urged, operated as a waiver on their part of their right of stoppage in transitu, if, under the facts of this case, such right still had an existence. It is contended that it was in effect a ratification of the sale by the appellees. This attachment suit, it is also claimed, was not abandoned until the appellees had become satisfied by actual experiment that they could not, by this mode of procedure, realize but a small portion of their debt. The general rule on this subject is that this right of the seller to reclaim his goods may be waived.

He may elect, if he sees fit to do so, to pursue some other remedy. It is said that if the vendor attach the goods as the property of the vendee, while they are in course of transportation, the legal effect of the issue and levy of such writ of attachment will be to destroy the right to stop them in transitu. Wait’s Actions and Defenses, vol. 5, pp. 616, 617; Bishop on Contracts, sec. 661. The following cases are also in this connection referred to: Ferguson v. Herring, 49 Tex., 129; Whitman v. Willis, 51 Tex., 426; Howeth v. Mills, 19 Tex., 295; Vickery v. Ward, 2 Tex., 214; Moore v. Gammel, 13 Tex., 120.

See, also, Bennett and wife v. Gamble, 1 Tex., on pp. 136 and 137; Moseley v. Gainer, 10 Tex., 578.

If, in this case, it shall appear that when the attachment suit was instituted the appellees were in ignorance of the facts of the case, after having with reasonable diligence attempted to learn them; and did not then have in their possession sufficient information, or the means of obtaining such information; and ceased immediately to prosecute the attachment suit when they learned the facts, they might in such event still resort to their right of stoppage in transitu, if the goods had not already, by actual or constructive delivery, passed into the possession of the vendee. See Halff, Weiss & Co. v.

Allyn & Co., supra. We express no opinion as to whether or not the matters detailed in evidence show that the appellees learned any new facts after the attachment suit was instituted that they did not know, or could not by ordinary care and caution have learned, before that event.

If it shall hereafter turn out that they were not ignorant of the actual state of the case as it then existed, and elected, with knowledge of the facts, to institute the proceedings by attachment, and did not in fact resort to the present mode of procedure, or entirely abandon their former suit, until they discovered that it was likely that little or nothing could be gained by its further prosecution, it may be held that the right to bring the present suit when it was brought no longer existed, having been waived by their resort under the circumstances to the remedy by attachment.

Such an election of their remedy, being equivalent to a ratification of the sale, would be destructive of their right, if they had any, to seize the goods in transitu. The judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered November 23, 1883.]