
    PAINE v. ARGYLE MERCANTILE CO.
    (Court of Civil Appeals of Texas.
    Nov. 19, 1910.
    Rehearing Denied Jan. 7, 1911.)
    1. Sales (§ 358) — Conteact Price — Evidence.
    On a dispute between a buyer and seller as to the price agreed upon, evidence of the value of the goods is admissible.
    [Ed. Note. — For other cases, see Sales, Gent. Dig. § 1052; Dec. Dig. § 358.] 2. Sales (§ 358) — Contract Price — Evidence.
    On a dispute between the buyer and seller of cotton seed as to the price agreed upon, the buyer could show that a third person offered to sell to him at the price claimed by him, though the witnesses would not testify that the price offered was the market price.
    TEd. Note; — For other cases, see Sales, Dec. Dig. § 358.]
    3. Sales (§ 364) — Action for Price — Instructions.
    In a suit for the price of cotton seed, the price agreed upon being in dispute, the court should instruct that plaintiff could only recover on the proof of its allegations as to the terms of the contract, and that no recovery could 'be had for seed sold before the contract unless by; amendment such sales were shown to be within its terms.
    [Ed. Note. — For other cases, see Sales, Dec. Dig. § 364.]
    Appeal from Denton County Court; Lee Zumwalt, Judge.
    Action by the Argyle Mercantile Company against J. H. Paine. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. C. Smith, Bottorff & Bottorff, and Geo. M. Hopkins, for appellant. Hopkins & Milli-ken, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   SPEER, J.

This is an action by the Argyle Mercantile Company to recover from J. H. Paine a balance alleged to be due upon the contract price of certain cotton seed. The defendant pleaded a contract of different terms, and that he had paid plaintiff in full according to such terms. The trial before a jury resulted in a verdict and judgment for plaintiff, and the defendant has appealed.

On the trial appellant offered the following evidence: He proposed to testify himself that C. C. Yeatts of Denton offered to sell him all the cotton seed he would need for his cattle during the fall and winter of 1906 for $11.50 per ton, and by the witness Yeatts, who is shown to be the manager of a gin at Denton, that he did make such offer and would have sold appellant cotton seed at Denton, Tex., at that time for the price named. The court excluded this evidence upon the apparent objection that the witnesses would not testify that the price named was the market value of cotton seed at Denton, Tex. Denton is shown to be only a few miles from appellant’s feeding pens, though not quite as near as appellee’s place of delivery. Other similar rulings were made and in these rulings the court committed error for which the cause must be reversed.

There was a sharp conflict- between appeL lant and appellee as to the terms of the express contract with reference to the sale of the seed; appellant testifying that the contract pricé was $11.50 to $12 per ton, while appellee’s witnesses testified that appellant agreed to pay $14 to $14.50 per ton. In this state of the evidence either party would have been permitted to prove the value of the cotton seed in order to corroborate his contention as to the terms of the contract. Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604. In the opinion in the case cited Mr. Justice Williams, now of the Supreme Court, in holding similar evidence to be admissible, remarked: “The evidence as to the value of the work and material was, we think, admissible as a circumstance for the jury to consider in resolving, the conflict of evidence as to the price fixed by the contract, but plaintiff should have been restricted to that price.” In the present case, the witnesses would not have testified that the offer of Yeatts to appellant was the market price of seed, but on principle we cannot say that this makes any difference. The theory upon which the market value of seed at the time and place would have been admissible undoubtedly is that it is relevant to the real issue; that is, the terms of the express contract, because it renders more probable, or improbable, the contention of one of the parties, as the case may be. Precisely so we think the evidence excluded would have a tendency to render more probable appellant’s contention that he did not agree to pay appellee a price so far in excess of that for which he knew he could have bought seed at .other places. The testimony was relevant, and should have been admitted; See, also, Hunter, Evans & Co. v. Lanius, 82 Tex. 677, 18 S. W. 201. On another trial the charge should more clearly instruct the jury that plaintiffs could only recover upon proof of their allegations as to the terms of the contract with appellant, and that no recovery could be had for seed sold prior to the date of that contract, unless, of ■course, by amendment such sales were shown to be within its terms.

Eor the errors discussed, the judgment is reversed, and the cause remanded for another trial.  