
    CRAIG, THOMPSON & JEFFRIES v. BARREDA.
    (No. 5822.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1917.
    On Motion for Rehearing, June 20, 1917.
    Second Motion for Rehearing Denied Oct. 24, 1917.)
    1. Appeal and Error <&wkey;>927(7)— Peremptory Instruction — Dependant’s Case.
    In determining whether the trial court should have given a peremptory instruction for plaintiff, it is proper to view the case in accordance with defendants’ pleadings and evidence.
    2. Sales &wkey;>90 — Substituted Agreement— Performance — Suit on Original Contract.
    Where a contract was made for the sale of cattle, and the buyers refused to perform when the contract was executory as to both parties, and thereupon a substitute contract was made whereby the seller agreed to accept a lower price than that named in the contract if the buyer would take the cattle, and such substitute contract was fully performed by both parties, the cattle being delivered and the price named in the substitute contract paid, the seller cannot sue on the original contract as if it had been carried out in every respect except that the buyers had not paid all the purchase money stipulated, though, when the buyers refused to carry out their contract, the seller could have treated it as broken and have sued for damages.
    On Motion for Rehearing.
    3. Sales <&wkey;60 — Ambiguity as to Passing of Title — Construction by Parties.
    Where a contract for the sale of cattle located in Mexico at a price per head provided that the buyers should pay all expenses for gathering the cattle and bringing them into Texas, including consular papers, duties, and other expenses, and that the cattle should be paid for as soon as they reached the American side of the Rio Grande river at Eagle Pass, such contract admitting of a doubt as to the intention of the parties as to when title should pass, the construction placed thereon by the parties was controlling.
    4. Appeal and Error <&wkey;171(3) — Review-Matter Not Pleaded.
    In an action to recover the price per head for cattle specified in the original contract for their sale, later reduced by the seller on the buyers’ refusal to perform, where the seller did not answer the buyers’ plea with any charge that, if a modification such as pleaded was actually made, it was induced by mistake or fraud, the Court of Civil Appeals cannot dispose of the case on any such theory, no matter what conclusion it might reach from the evidence.
    Error from District Court, Maverick County; Joseph Jones, Judge.
    Suit toy Ramon Barreda against Craig, Thompson & Jeffries. To review a judgment for plaintiff, defendants "bring error.
    Reversed, and cause remanded.
    O. K. McDowell and Boggess & Smith', all of Del Rio, and Ed H. Wicks, of San Antonio, for plaintiffs in error. Sanford & Wright, of Eagle Pass, for defendant in error.
   MOURSUND, J.

Ramon Barreda sued Craig, Thompson & Jeffries to recover damages in the sum of $2,394, alleging that on January 9, 1914, at Laredo, Tex., he entered into a written contract with said defendants for the sale of all the cattle he had, located at Candela, Coahuila, in the republic of Mexico, for which defendants agreed to pay $19 per head, United States currency, except for calves, for which only $5 per head was to he paid; that defendants were also to pay all expenses for gathering the cattle and bringing them to Texas, including consular papers, duties, and other expenses that might occur, and the cattle were to be paid for as. soon as they reached the American side of the Rio Grande at Eagle Pass, Tex.; that the cattle were gathered and were about to he taken across the Rio Grande, when defendants Thompson and Craig, acting for defendant firm, represented to plaintiff in Eagle Pass that the authorities in Mexico were charging and demanding that 10 pesos per head be paid before they would permit the cattle to be' taken across the line, and requested plaintiff to reduce the price to $12 per head for the cattle; that thereupon plaintiff advised defendants to pay the duty and cross the cattle, and if in fact they had to pay 10 pesos per head plaintiff would accept $12 per head for the cattle and deliver the cattle ; that the defendants thereupon paid the duty required of them and crossed the cattle, and in answer to inquiry made by plaintiff, who did not know what amount had been exacted, represented to plaintiff they had paid 10 pesos per head as duty, and, relying upon such representation, plaintiff accepted the $12 per head and delivered the cattle; that this representation was false, as defendants did not pay said amount or anything near that amount, and was fraudulently made to induce plaintiff to accept the reduced price. Plaintiff alleged that the difference in the sum contracted to he paid and the price accepted on account of such representation was $2,394. He also alleged that the original contract had not in any way become oppressive upon defendants, and that there was no consideration moving from them to him for the alteration of the original contract.

Defendants answered by general denial and a special answer to the effect that before the cattle reached the border defendants were informed that the Huerta government, then in control of the Mexican part of Piedras Negras, had levied an export tax or duty of 10 pesos per head on all cattle exported; that defendants, believing said tax had been levied, informed plaintiff that by reason of the changed conditions arising subsequent to the execution of said contract, and the probability that the crossing of the cattle would be delayed and rendered more expensive than was originally contemplated, they could not and would not carry out said contract according to its original terms; that thereupon plaintiff opened negotiations for a mutual modification of the contract, and a modification was agreed to by wbicb defendants were to pay $12 per head for all cattle delivered and to bear all the costs and expense of crossing the same; that pursuant to this agreement the defendants paid the charges and crossed the cattle, and plaintiff then delivered said cattle to defendants, who paid him $6,504 for same, and plaintiff executed to defendants his bill of sale therefor.

The court gave a peremptory instruction in favor of plaintiff, and upon the verdict returned pursuant thereto entered judgment for the amount sued for.

The petition, in substance, alleges that it was agreed to modify the original contract provided a duty of 10 pesos per head was exacted; that in fact no such duty was exacted, but by fraudulent representations defendants induced plaintiff to believe that such a duty had been collected, and by reason of such fraud plaintiff parted with his cattle for less than he was entitled to receive. There is no allegation that such conditional modification was induced hy fraud, accident, or mistake, but it is averred that the original contract did not become burdensome upon defendants, and that no consideration inured to plaintiff for such conditional modification.

Defendants filed a general denial, and then pleaded that a substitute contract had been made, setting out the- terms thereof, and that it had been fully performed by both parties thereto.

The testimony introduced in behalf of each party corresponded with his pleadings, thus making issues of fact to be determined by the jury, unless plaintiff is entitled to recover upon the original contract the sum sued for by him, upon the theory that the obligations thereby created remain in full force and effect.

This is a case in which the buyer refused to perform his contract, while something remained to be done by both parties thereto, whereupon a substitute contract was entered into by which the seller agreed to accept a lower price than that named in the contract if the buyer would take the cattle, and such substitute contract was fully performed by both parties, the cattle being delivered and tne price named in the substitute contract paid.

We state the case in accordance with defendants’ pleadings and evidence because it is proper to do so in determining whether the court should have given the peremptory instruction. The case of Jones & Carey v. Risley, 91 Tex. 1, 32 S. W. 1027, is authority for the proposition that the seller could not have enforced the substitute contract, because it was not based upon a new consider-, ation, even though made at a time when neither party had fully performed his part of the contract. But this is not a suit to enforce the substitute contract. That contract was fully performed by both parties. The suit is upon the original contract for the difference between the price contracted to be paid under such contract and the price received under the substitute contract. Many authorities on the subject of consideration for new agreements abrogating or altering prior contracts will be found collated and discussed in the note to Morecraft v. Allen, L. R. A. 1915B, 1, and in the editor’s “Conclusion” to the note appears the following statement:

“If a now agreement abrogates, alters, or supplants an old one, and is fully executed by performance on both sides, inquiry into its consideration is closed.”

We believe the rule just stated should be applied in this case. When the buyers refused to carry out their contract, the seller could have treated it as breached and have sued for damages, but, being unable to find another buyer, he entered into negotiations with the buyers which culminated in the making of the substitute agreement. That agreement was fully performed, and the seller should not be permitted to sue on the original contract as if it had been carried out in every respect except that the seller had not been paid all the purchase money stipulated therein to be paid by the buyers.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Defendant in error contends that by the terms of the contract the title to the cattle was vested in plaintiffs in error at the time they refused to further perform their obligations under the contract, and that therefore our decision is in direct conflict with the opinion of this court in the case of Whitsett v. Garney, 124 S. W. 443.

We conclude that the contract does not express an intention that the title to the cattle should pass prior to their reaching Eagle Pass; that the language is such as to admit of a doubt as to the intention, to say the least; that the construction placed thereon by the parties as disclosed by the evidence and defendant in error’s pleading was that the title was not to pass until the cattle reached Eagle Pass, and were formally delivered .by defendant in error; that such construction should control us in determining the questions presented; and that therefore no conflict exists between our decision and that rendered in Whitsett v. Carney. The case cannot be decided by the rule applicable to the attempted satisfaction of a liquidated .demand by part payment thereof under an agreement that such part payment is to be received in full satisfaction of the debt.

We do not agree with plaintiffs in error that the suit is one for damages for fraud. Barreda sought to recover upon the original contract, presenting two theories, one that he had agreed to a modification to take effect provided a certain event occurred, which event he alleged had not occurred, hut that he had been led by fraud to believe it had occurred, and the other that there was no consideration for any modification, and no change had taken place which would make the contract so burdensome upon appellants as to support an agreement modifying the original contract.

The plaintiffs in error denied Barreda’s allegations, and pleaded that they had refused to perform the original contract, stating their reasons for such act, and that thereupon Barreda had agreed to a change in price, and that the new agreement had been fully performed by both parties. They failed to plead and prove any consideration for the modification, and relied solely upon the theory that, when a contract in which there has been a change made as to a material clause is fully performed, the parties are bound, and cannot inquire into the consideration.

Barreda did not answer plaintiffs in error’s plea with any charge that, if a modification such as was pleaded was actually made, it was induced by mistake or fraud ; so we cannot dispose of the case upon any such theory, no matter what conclusion we were to arrive at from the evidence. The testimony of Barreda and plaintiffs in error is practically in accord to the effect that the change was proposed and agreed to because of the information to the effect, that a duty of 10 pesos would • be charged. In fact, no duty whatever was charged by the Huerta government. The testimony of the broker tends to show that probably one of the appellants knew the day before the cattle were driven across the Rio Grande that probably no duty would be charged. No such information reached defendant in error, or he would not have accepted the offer made by plaintiffs in error.

We are - still of the opinion that the defendant in error was not entitled to a peremptory instruction upon the case made by the pleadings and evidence.

The motion is therefore overruled. 
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