Houston Cotton Oil Company v. D. M. Trammell, 96 Tex. 598

BROWN, Associate Justice. The Court of Civil Appeals stated the following as the facts of this case: “In August, 1900, the plaintiff and appellant executed the written contract set out in plaintiff’s petition, whereby the appellant agreed that it would, in October of the same year and thereafter, furnish and deliver to the plaintiff at West, Texas, sound cotton seed meal.

The written contract is silent as to the purpose of the plaintiff in purchasing the meal, and as to the use he intended it for; but the appellant, through its agents and officers, knew that the plaintiff, in the purchase of the meal, intended to use it for' the purpose of fattening beef cattle for market. On October 17, 1900, at West, Texas, the plaintiff put in pens, for the purpose of feeding, 433 head of cattle, which he intended to feed and fatten for market with the cotton seed meal and hulls.

In pursuance of the contract, the plaintiff then demanded cotton seed meal of appellant, and after some delay, sound meal and hulls were delivered to the plaintiff at West, Texas, by the appellant, which was fed to the cattle, upon which they thrived, until about the 6th day of •December, 1900, when about that time and afterwards the appellant delivered and furnished to plaintiff unsound and unwholesome cotton seed meal, which was fed to plaintiff’s cattle and caused them to become sick, and injured them in the maimer set out in plaintiff’s petition.

From the 6th of December to the 13th of December the plaintiff was absent from West, and during that time left the cattle in charge of an employe who was inexperienced in feeding cotton seed meal to cattle, and of ascertaining the quality of such meal. Dpon the return of plaintiff on the 13th of December, he discovered that the cattle were sick and in bad condition. The plaintiff’s evidence upon this subject is as follows: ‘They (meaning the cattle) were standing around in the lot with their ears flopped, eyes sunk in their heads, hair all turned up, and they were scouring badly, passing bloody mucous.

They would lay down and this matter would pass from them, and would trail after them when they would get up. They were off their feed and were sick. I examined their food and found some sour meal made of rotten cotton seed that had been burned out in my judgment.’ “The plaintiff upon this discovery, notified the agents of appellants of the condition of the cattle, and demanded sound cotton seed meal, which the appellant then through their agents agreed to furnish. Upon discovery of the bad condition of the meal, plaintiff ceased feeding it to his cattle.

The appellant thereafter furnished other meal which was fed to the cattle, and which at the time was by plaintiff’s servant in charge of said cattle supposed to be sound meal. But this meal was also unsound and unwholesome, and aggravated and increased the sick condition of the cattle. As soon as the plaintiff discovered that the meal was not sound and wholesome, he ceased feeding same to the cattle. The injuries from this last feeding were in the latter part of December, 1900.

The cotton seed meal furnished by appellant was not sound and wholesome for the purpose of feeding cattle, which fact was known to the agents of appellant, or could have been discovered by the exercise of ordinary diligence; and by reason thereof, the cattle became sick and fell off in weight and deteriorated in market value at West, Texas, in December, 1900, $10 per head.

About the last of January or the first of February, 1901, plaintiff sold thirty-one head of the cattle in West, Texas, and the balance in Kansas City and Chicago, and up to the time of these sales the cattle had not recovered or been restored to the health and sound condition they were in before the unsound meal was fed to them. But they were, to some extent, improved in comparison to their condition in December, 1900, immediately and soon after they were fed the unsound meal.

The plaintiff and his servants in feeding the cattle, exercised ordinary care to discover the condition of the meal, and the same was fed in ignorance of the fact that it was not wholesome and sound; and the evidence warrants the conclusion that the plaintiff, after discovering the condition of the cattle, used ordinary care to cure them and restore them to their former condition.”' Trammel instituted suit against the Houston Cotton Oil Company to recover damages occasioned to 423 head of cattle by feeding unsound meal to them which was alleged to have been furnished by the cotton oil company under the contract as above stated.

The defendant admitted the execution of the contract as set out in plaintiff’s petition, but denied that the cotton seed meal and hulls caused the sickness and damages claimed, alleging other grounds and reason why the plaintiff’s cattle became sick; also that if the meal was unsound Trammel ought to have rejected it before feeding it to his cattle and could have avoided the injury by so doing, and purchasing sound meal in lieu thereof. The answer also contained allegations of contributory negligence on the part of Trammell in failing to do other things which might have been done to lessen the damages.

Upon a trial before a jury Trammell recovered judgment for $2100 against the cotton oil company, which was affirmed by the Court of Civil Appeals.

The plaintiff, Trammell, being upon the stand as a witness, in his own behalf, testified in substance that, about October 22, 1900, he placed in pens at West, Texas, to be fed for market, about 423 head of cattle, which did well until about the 6th of December, 1900, when he began to feed them cotton seed meal furnished by the defendant under the contract alleged, when they became sick and lost weight; got in bad condition and were never in good condition again before he sold them; that the difference in the market value of said cattle at the town of West, Texas, just before and just after such sickness “was the sum of $10 per head; that is, the cattle were worth $40 per head before they were made sick by the meal and $30 per head afterwards; that the cattle improved some afterwards, but never got in as good condition as they were before.

Witness testified that he sold thirty-one head of the cattle at West, Texas, to a butcher, and sold the remainder in market in Kansas City and Chicago.

After this testimony the defendant upon cross-examination of the plaintiff asked him <chow much he received per head for the cattle sold in Kansas City and Chicago,” to which question the plaintiff objected, because the measure of damages is the difference between the market value of said cattle at West, Texas, be-before and after they became sick, and because the time at which they were sold was forty to fifty days after they became sick, which objection the court sustained, and the defendant excepted.

The action of the court in sustaining this objection is the basis of the first assignment of error presented by the application for writ of error.

It is true that, as applicable to the facts of this case, the measure of damages, as claimed, is the difference between the market value of the cattle at West just before and just after they were made sick by eating the meal, and the evidence was not admissible to establish as the measure of damages the market value of the cattle at the places where sold as the criterion by which to determine the amount of recovery; but the plaintiff having testified upon direct examination to the fact that the cattle had depreciated as much as $10 per head while sick, it was permissible on cross-examination to ascertain from him the price at which he sold the cattle at a subsequent but not remote date, because the testimony would tend to show that the plaintiff’s opinion of the amount which the cattle had declined in value was not correct and thus impeach the reliability of his judgment in making estimate of the damages sustained.

Herrin v. Patten, 44 S. W. Rep., 50. The trial court ■ erred in excluding the testimony offered, for which this judgment must be reversed and the cause remanded. Earnest Memcek, a witness for the defendant, being on the stand, testified, in substance, that about forty or fifty days after the cattle were made sick by eating the meal, the defendant in error, Trammell, sold to the witness, at the town of West, in Texas, thirty-one head of the cattle, which witness bought for the purpose of butchering, and they were in good condition at that time; that some were of the smallest of the lot and some were medium size.

Counsel for the oil company then asked the witness what he had paid for the cattle; plaintiff below objected, which was sustained and the ruling is assigned as error. We are unable to see how the price-paid for the cattle at West would tend to prove any issue in this case. The plaintiff was not suing for the damages to the cattle which were sold at West, Texas, and their value could throw no light upon the question before the court. There was no error in excluding the evidence. We deem it unnecessary to discuss the other assignments of error.

The charge of the court presented the law in a clear and explicit manner and in our opinion covered every phase of the case which was attempted to be presented by the charges refused so far as the requested charges were correct. Because of the error before stated, the judgments of the District Court and of the Court of Civil Appeals are reversed and this cause is remanded for further trial. Reversed and remanded.