W. C. Irvin v. S. V. Edwards, Sheriff, Etc., 92 Tex. 258

BROWN, Associate Justice. W. C. Irvin sold to W. H. Jennings, Jr., all of the beef steers upon the ranch of the former and executed and delivered to Jennings the following bill of sale: “The State of Texas, County of Bexar. — This memorandum of agreement made and entered into ón this, the 18th day of September, 1894, by and between W. 0. Irvin, of La Salle County, Texas, party of the first part, and W. H.

Jennings, Jr., of San Antonio, Bexar County, Texas, party of the second part, witnesseth: That the said party of the first part has this day bargained and sold, and hereby agrees to bargain, sell, and deliver unto the party of the second part all of his steer beeves now located and hereafter to be kept in his pasture in the county of La Salle and State of Texas, which said steer beeves shall be in number about fifteen hundred (1500) head, more or less, and all, of them shall, in the spring of 1895, be four years old and upwards.

Ho cattle herein sold shall include any cattle known as ‘big jaws’ or ‘cripples.’ “Also, all of his steer cattle which shall be three years old in the spring of 1895, and being in number about two hundred (200) head, more or less, all of which shall be good merchantable steers. Also, all the fat cows, bulls, and stags which the said Irvin can conveniently gather, of such character that they shall be fat and in good shipping condition for beef. All of said cattle being in the following brands: SO side, hip, EUG side, hip, hip, V.K. side. “In consideration of the above sale, said W. H.

Jennings, Jr., has agreed and does hereby agree to pay to said W. 0. Irvin for the said four-year-old steers, and older, the sum of eighteen ($18) dollars per head; for the said three-year-old steers the sum of thirteen ($13) dollars per head; and for the said cows, bulls, and stags, the sum of ten ($10) per head; and has this day paid upon such purchase money in cash, the sum of six thousand ($6000) dollars, the balance of said purchase money to be paid when the cattle shall have been delivered. “The said W. C.

Irvin agrees to pasture and care for all of said cattle from the present time up to the 15th day of June, 1895, and to deliver the same to the said W. H. J ennings, Jr., his heirs or assigns, in trainload lots in the shipping pens at Cotulla, Texas, if so desired by the said Jennings, upon ten days notice being given by said Jennings to said Irvin of the time at which said J ennings desires said cattle to be put in the shipping pens by said Irvin ready for shipment. “That, in the application of the payments of said, purchase money under this agreement, it is agreed that, as cattle are delivered, the said W. H.

Jennings, Jr., shall pay unto the said W. C.

Irvin the price herein-before stated for each head of cattle delivered, on the day on which they are delivered to him by said Irvin in the shipping pens at Cotulla, Texas; the $6000 to be applied as a payment upon the last delivery or deliveries of said cattle as hereinbefore provided for. “It is further agreed and understood that, in the pasturing of the cattle and the care of them from this date until the date of their delivery, the said Irvin shall exercise proper and reasonable care, and, in handling said cattle from the pasture to the shipping pens, the said Irvin will handle them with the care generally used in handling cattle for shipment to market for beef. “It is further agreed and understood by the parties hereto that the said W.

H. Jennings, Jr., will, himself or by his agent, proceed to the pasture of the said Irvin and classify, pass upon, and accept the cattle to be delivered to him upon this contract, before the said Irvin shall be required to drive them or any of them from his pastures to the shipping pens at Cotulla, Texas. And it is further understood and agreed that the said J ennings shall only be required to accept such fat cows, bulls, and stags as may be in such condition as will warrant their being shipped to market as beeves. “Witness our hands, this the 18th day of September, 1894. “W. C. Irvin, “W. H.

Jennings, Jr.” Jennings paid, at the time, $6000 upon the purchase, and paid the balance upon delivery of the cattle, none of which were delivered, however, until after the first of January, 1895. Irvin owned a ranch in La Salle County upon which he had at the time several thousand head of cattle, and in 1895 he listed for taxation in said county all of the cattle that were upon his ranch on the first day of January, 1895, except twelve hundred head of steers which he had sold to W. H. Jennings. S. Y.

Edwards was the sheriff and tax' collector of that county, and, by order of the commissioners court, placed upon the supplemental tax rolls of La Salle County for the year 1895 1200 head of steers as the property of W. C. Irvin, and assessed against the said steers tax amounting to $147, which has never been paid. This suit was brought by W. C. Irvin against Edwards to restrain him from enforcing the collection of the said tax, and the District Court issued a temporary writ of injunction, which upon final hearing was perpetuated.

The Court of Civil Appeals reversed the judgment of the District Court and dissolved the- injunction. The beef steers sold by Irvin to Jennings were sufficiently identified to pass title, and the language used in the first clause of the bill of sale clearly shows an intention that the title should then pass and vest-in Jennings. The Court of Civil Appeals held that, construing the whole instrument, the intention thus manifested was shown not to exist in fact, but that the parties intended the title should not vest until delivery should be made.

It is true that only a part of the purchase money was paid at the time, and the contract prescribed that the remainder of the purchase money should be paid in installments as the cattle should be delivered. This does not prove that the parties intended the title to remain in Irvin until delivery; it was not at all unusual in such transactions to so provide, but was a reasonable arrangement for completing the payments of the price.

The provisions of the contract whereby Irvin agreed and bound himself to pasture and care for the cattle to the 15th day of June, 1895, and to deliver them to Jennings upon notice from him, binding himself also to exercise reasonable and proper care in pasturing and caring for and in moving them from the pasture to the shipping pens, show that the steers had become the property of Jennings and Irvin was acting as the agent of the former in the care and handling of the stock.

If the . cattle belonged to Irvin, why should he contract with Jennings for the exercise of care in handling and managing property that belonged to himself? If Jennings was entitled only to such cattle as might be delivered to him by Irvin, a failure by Irvin to exercise proper care in pasturing and driving them could have been of no interest to Jennings, and a service to be performed by Irvin for his own benefit would have been a novel subject of contract between those parties. Title to the steers passed to Jennings at the time the bill of sale was delivered.

The 1200 beef steers which were assessed in the name of the plaintiff in error were not his property on the first day of January, 1895, and he was not liable for the taxes so assessed. The Court of Civil Appeals erred in reversing the judgment of the District Court and in rendering judgment dissolving the injunction which had been previously issued. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and that the judgment of the District Court be affirmed. Judgment of Court of Civil Appeals reversed. Judgment of District Court affirmed.