
    Martin vs Stratton-White Co.
    Opinion delivered September 19, 1896.
    
      1. Pleading— Variance — Amendment.
    Appellant moved to quash the attachment and garnishment 1 cause of the variance between the affidavit and complaint a because the written contract attached to the complaint show that appellant had never contracted with the appellee 1 with a mercantile partnership and neither the complaint i the affidavit alleged that the appellee was the successor assignee of the firm. The court allowed appellee to amend a overruled the motion to quash. Held, The allowance of 1 amendment was clearly within the court’s discretion and injury prejudicial to the substantial rights of the defendí resulted on that account..
    2. Consignment of Goods — Agency—Condition oj Goods — Evidence.
    Appellant entered into a contract with appellee by which apj lant was to take certain agricultural implements to be sold £ accounted for to Stratton & White. That the ownershij the goods consigned was to remain in Stratton & White ur paid for. That appellant was to take notes for the goods s payable to Stratton & White and guarantee the payment the of. To sell the goods within twelve months and to settle in ■ manner set out in the contract for all goods not sold at the of such time. . Held, That this contract was clearly one of agency and appellant was not a vendee, conditionally or other wise, but was an agent of Stratton & White and it was not error to refuse to allow appellant to prove the damaged condition of the goods.
    Appeal from the United States Court for the South-i District.
    C. B. Kilgore, Judge.
    Suit and attachment by the Stratton-White Company, ainst Thomas H. Martin. Judgment for plaintiff. De-ldant appeals.
    Affirmed.
    This is a suit brought by the Stratton-White Com-ay, a corporation under the laws of Texas,. plaintiff be-7, hereinafter styled ‘ ‘appellee, ’ ’ against appellant, Tom Martin, who was defendant below, upon an open account ' certain vehicles, implements, and other goods alleged to ?e been delivered by appellee to appellant under a written mt’s contract, which contract was made an exhibit to lintiff’s complaint, and for which, as alleged in plaintiff’s nplaint, appellant has never settled. Suit was filed Octo- • 27, 1895; and, the same day, appellee, by its attorney, ore out an attachment against appellant, on the ground t Martin had sold, conveyed, and otherwise disposed of property, with the fraudulent intent and purpose to sat, hinder, and delay his creditors. December 4, 1895, oellant filed his answer, which consisted of a special de-rrer, a specific denial seriatim of every allegation in intiff’s complaint, and the further plea that the defendant l bought the goods, wares, and other merchandise upon a rranty that they were merchantable goods in first-class .dition, but that they were unsalable, worn, and worth-3, and that appellant had further paid to appelleé on said rchandise the sum of $600, without any consideration whatever, for which sum appellant asked judgment of court. December 16, 1895, appellant filed his motioi quash the attachment and garnishment in said cause, is; because of a variance between the affidavit and the ( plaint, and because the written contract which was an hibit to the complaint showed that appellant had never tracted with the appellee, but with a mercantile partners and neither the complaint nor the affidavit alleged appellee was the assignee or successor of said firm. De< ber 16', 1895, the court overruled said motion to quash attachment and garnishment; but allowed appellee to an the pleading by interlineation, to which ruling of the c appellant duly excepted. The cause was tried by a j December, 8, 1895. Upon said trial appellant testified he entered into the contract upon which this suit was i tuted with one Swan, an agent for the firm of Strattc •White; that, at the time of entering said contract with S’ defendant had never seen the vehicles, which were in a v house in Pauls Valley; and that said Swan represented the goods were in good condition. The witness then off to prove by himself, W. S. Harris, and Richard Gibson said goods received under said contract were in a very < aged condition, and that he was unable to sell them on account for anything like fair prices. Upon objectio appellee, this testimony was excluded from, the jury, appellant denied the introduction of this proof, upon ground that it varied the written contract, to which ri of the court appellant duly excepted. The jury return verdict for appellee in the sum of $233.98, with interest per cent, from April 10, 1894. December 19, 1895, appe filed his motion for a new trial, which was overruled on 20th, to which action of the court appellant duly exce] The same day, appellant’s prayer for appeal was alio and 60 days granted to prepare bill of exceptions. Jar 18, 1896, appellant filed his supersedeas bond. Februar , statement of facts and bill of exceptions were filed, and diant now prosecutes this appeal.
    Pleadings,
    
      Claude Weaver and Green Weaver, for appellant.
    
      Albert Bennie, John A. McClwe and 0. W. Patchell, for dlee.
   Springer, C. J.

(after stating the facts.) Counsel appellant submit five assignments of error. Four of e relate to the motion to quash the attachment and ishment, to the amendment which the court allowed ¡llee to make to these proceedings, and to the judgment josts of the attachment, and garnishment. The court red appellee to amend by interlineation. The allowance e amendment was clearly within the court’s discretion, jpo injury prejudicial to the substantial rights of the ap-nt resulted on that account. rl his court must disregard error or defectin the pleadings which does not affect the bantial rights of the adverse party, and no judgment Id be reversed by reason of such error or defect. Mansf. § 5083.

The fifth assignment of error by appellant is as fol- : “That the court eired in denying appellant the right ove the damaged condition of the merchandise received im.” The determination on this assignment turns upon uestion whether the contract sued on constituted a sale, jonsignment of the goods to an agent for sale on com-on?. ' The contract was in writing, and is made an exhibit must be construed according to its terms. -It is quite .hy, covering four pages of typewritten matter . in the d. The goods consisted of agricultural implements, ;hey were to be shipped by appellee from Ft. Worth, to the appellant at Pauls Valley, Indian Territory, “to Id, and accounted for to the said Stratton and White, in 'cash or purchaser’s notes, as herein described, at the pric ' agreed upon when goods are shipped. ” All notes tak< were to be on blanks furnished by appellee and to be gua antied by Martin, and all sales were to be made, and not taken therefor, in the name of the appellee. It was furth provided as follows: “That the ownership of all vehicle implements, or other goods furnished under this contract, their proceeds, shall remain in Stratton and White un settlement shall have been made for them by the said par of the second part, as herein provided;” and, furthc “Should said party of the first part [the appellee] desire resume possession of said goods so consigned, they shall entitled to receive them- free from any charges for freigl cartage, storage, or insurance paid or incurred on accou thereof by said party of the second part [the appellant The stipulation in the contract which is especially significa is substantially as follows: “The party of the second pa Martin, agrees to sell all the goods ordered under this cc tract within twelve months, and, in case of any failm agrees to settle for the goods unsold, if called on by Stratt and White, in either of the following ways, as Stratton a White may elect: To give his .note, due in six months, blanks furnished' by them, payable to them or order, or deliver said goods, in good order, free of charge, subject the order of Stratton and White.” These provisions cleai cb-ara°ter of the contract. It did not provide foi sale of the goods to Martin, but merely for a consignment them to. him for sale on commission.. Martin was no1 vendee, conditionally or otherwise. He was an, agent Stratton & White. It was not error on the part of the coi to refuse to allow appellant to prove the damaged conditi of the goods. That fact was immaterial and irrelevant, the goods were in a damaged condition, Martin should ha notified his principal, under the terms of his agency. I sole compensation was the difference between the amor :ed on each, article and the price for which the agent artin could sell it. If he sold it, he was chargeable at once, th the amount fixed upon it, and the condition in which it ght have been at that time was wholly immaterial. He d no authority to sell the implements except in such man-r as would wholly compensate him for his trouble, by re-iving a sum in excess of the amount he was to pay to his incipals. If he parted with the goods, he was obliged to count to Stratton & White for the amount, which had been reed upon between him and them. The instructions of the art and the verdict of the jury are strictly in accordance bh the letter and spirit of the contract, and the judgment the court is affirmed.

oomrict1611*'

Lewis, J., concurs in this opinion.  