Citations
- 63 Tex. Civ. App. 520
Full opinion text
PLEASANTS, Chief Justice.
On motion for rehearing.—Ata former day of this term we affirmed the judgment of the court below in this case, without written opinion. Appellant has filed motion for rehearing. After due reconsideration of the questions presented, we have decided to adhere to our former conclusion and affirm the judgment. Upon two of the questions presented we deem it best to state our conclusions in writing.
The suit was brought by appellant against appellees to recover for alleged breach of contract for the sale of cotton. On October 28, 1908, appellant, through his agent, L. Jacobs, purchased from appellees 200 bales of good middling cotton of a named staple on the “basis of Liverpool classification”, to be delivered f. ,o. b. shipside, Galveston, at a, price of 9 1/16 cents per pound. The purchase was made by correspondence and the cotton was paid for hy appellant without it having been inspected and in reliance upon appellees’ warranty as to grade and staple. When the cotton reached the foreign port it was rejected by parties to whom appellant had resold, on the ground that it was not of the grade and staple specified. Appellant claims that he thereupon, in accordance with the usage and custom of the trade, of which appellees, were cognizant and which was in contemplation of the parties at the time the contract was made, as evidenced hy the clause in .said contract, “basis of Liverpool classification,” had the question of whether the cotton was of the grade and staple called for by the contract submitted to a board of arbitration composed of members of the Liverpool Cotton Association. The suit is to recover the difference between the value of the cotton of the grade and staple specified in the contract of sale and cotton of the grade and staple delivered appellant as shown by the report of said board of arbitration.
In support of his claim appellant offered in evidence the following instrument:
“Liverpool, 30th Deer., 1908.
“We, the undersigned Members of the Liverpool Cotton Association, Limd., hereby certify that we have carefully examined samples of 200 Bales Texas. Cotton, shipped as Good Middling, good colour staple 28/9 m/m, and have awarded the following allowances:
Mark Bales Description Ship Allowance.
Cool 100 Good Middling Albanian 5/100 off 100 B/S.
good colour 28/9 m/m
Caas 100 Do Do 6/100 off 100 B/S.
M. MacLeod„ T m . 1 Arbitrators. J. Taylor j
In connection with and as explanatory of said instrument appellant offered the following testimony of L. Jacobs:
“That the above certificate offered in evidence is on one of the regular printed forms usually and customarily used and followed by the Liverpool Cotton Exchange, and that he knew from his experience in the cotton business that it was the character of certificates usually and customarily made by members of the Liverpool Cotton Association when arbitrating differences in the classification of cotton. That he was informed by letter and by cablegram that this cotton was arbitrated by members of the Liverpool Cotton Association. That he is personally acquainted with M. MacLeod whose signature is attached to the certificate as one of the arbitrators, and knew of his own knowledge that said MacLeod was a member of the Liverpool Cotton Association at the time of the issuance of the certificate; that he did not personally know J. Taylor, the other person whose name is signed to the certificate, but that he knew by reputation that said Taylor was a member of the Liverpool Cotton Association. That the 200. bales of cotton marked ‘Coo? and ‘Caas/ respectively, was the only cotton of that description shipped by Jacobs. That the cotton purchased of Fussbaum & Scharff marked