Cities Service Oil Co. v. Heffington (108 S.W.2d 334, 1937)

BLAIR, Justice.

Appellee, Steve Heffington, Jr., sued appellant, Cities Service Oil Company, to recover $379.24, the purchase price of certain filling station equipment sold by appellee to appellant. A jury trial upon special issues resulted in judgment for appellee as prayed.

Before the check issued by appellant in payment of the equipment was delivered to appellee, the equipment was destroyed by the flood waters of the Colorado river; and appellant contends that the undisputed evidence showed: (1) That the sale of the equipment was a cash sale, and that title had not passed at the time it was destroyed by the flood; and (2) that if title had passed, appellee was the bailee of the equipment and negligently permitted it to be destroyed by the flood.

The jury found each of these issues against appellant, and the evidence sufficiently supports such findings.

Prior to June 7, 1935, appellant’s agent, Ritter, approached appellee to purchase the equipment in controversy for the sum of $379.24. Appellee could not sell the property to appellant because he had given an option to Mrs. Bettie Hemphill to purchase the property, which was located at her filling station near the Montopolis bridge near Austin, and where she had been .selling the products of appellee through such equipment. On June 7, 1935, Mrs. Hemp-hill wrote appellee that she had assigned her option to purchase the property to appellant, and that thenceforth she would buy her petroleum products from appellant, and with which she would service the equipment. On June 10, 1935, appellee and appellant’s agent agreed upon the sale of the property to appellant, appellee delivering to the agent an invoice of the property, stipulating therein as follows:

“Left installed with Mrs. Bettie Hemp-hill Montopolis Road Austin, Texas. Said equipment is not to be serviced by Cities Service Oil Co. or its agents till payment has been paid, at the main office of Heffing-ton Pet Co. located at 2401 E. 6th St., Austin, Texas.”

At the time of the delivery of the invoice, appellee requested the agent of appellant to pay for it by his personal check, which he refused to do. Appellee then requested appellant to draw a draft upon the home office of appellant at Fort Worth, Tex., in payment of the equipment. This the agent refused to do, claiming he had no authority to draw such draft, but agreed that he would mail the invoice to appellant at Fort Worth, and would receive its check within six or eight days in payment of the equipment; and if payment were further delayed, interest would be paid on the purchase price. Appellee testified that he placed the stipulation on the invoice not to service the equipment until it was paid for, in order to secure payment of the equipment as soon as possible; but intending that title pass to the property at the time of the delivery of the invoice. He did this because previously appellant had been slow in payment of its transactions with appellee. Appellant issued its check soon after the invoice reached its office, and mailed same to Ritter, its agent at Austin, for delivery to appellee. The agent did not deliver it to appellee, because the flood destroyed the property on or about June 15, 1935. In the meantime, appellee, on June 12, 1935, wrote appellant by registered letter at Austin, addressed to its Austin office, informing it of the danger of the property being destroyed by flood, and stating that he considered it appellant’s property, and that it was its duty to protect the property. Appellant’s agent testified that he di