
    McKIE v. WASHINGTON et al.
    (No. 8673.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1922.
    Rehearing Denied Jan. 20, 1923.)
    Principal and! agent <§==>189(4) — No recovery where complaint claims defendant was principal in sale and evidence shows merely agreement after sale to pay for shortage.
    Where complaint in action against defendant P., for shortage, etc., in seed bought and paid for, was based on the claim that P. was the principal of defendant W. in the sale, but the evidence established no relation of principal and agent or of partners between defendants, but at most an agreement of P., after the shortage was discovered, to pay therefor, verdict was properly directed for P.
    Appeal fom Navarro County Court; A. P. Mays, Judge.
    Action by B. G. McKie against A. Washington and another. Prom judgment on a verdict directed for defendant S. G. Powers, plaintiff appeals.
    Affirmed.
    W. A. .Tarver and W. J. McKie, both of Corsicana, for appellant.
    Callicutt & Johnson, of Corsicana, for ap-pellees.
   ADAMS, Special Justice.

Appellant, B. G. McKie, filed this suit against A. Washington, of Hubbard, Hill county, Tex., and S. G. Powers, of Emmett, Navarro county, Tex., alleging that on about the 6th day of March, 1916, appellant purchased from appellee S. G. Powers through appellee A. Washington a ear of cotton seed upon samples furnished by ap-pellee Washington for himself and his coap-pellee, S. G. Powers, at a stipulated price per ton; that a draft was drawn upon him through a bank at Waco with bill of láding attached for the carload of cotton seed, which draft he paid; that appellant shipped the cotton seed to the Western .Cotton Oil & Gin Company at Haslcel, Tex., and drew against that customer a draft with bill of lading attached; that the cotton oil mill refused to a.ccept the cotton seed because of their failure to come up to the sample and because of shortage in weight. Appellant allowed a credit on the sale of $7 per ton, a total of $157.37, and allowed the shortage in weight of $26.47, and claims telegraph and telephone expenses of $20. Appellant also claims that on the 3d day of March, 1916, he purchased 93 tons of cotton seed at a price of $25 per ton from appellee Washington and that appellee refused to deliver the cotton seed, causing the appellant a loss of $130.30, or $1.40 per ton, and that appellee Washington made the contract for himself and for the use and benefit of appellee S. G. Powers, and prays for a joint and several judgment for the several items and for costs.

Both appellant and appellee Powers have assigned error to the action of the trial court in his action on the plea to the jurisdiction of the court and also certain exceptions urged by them respectively. In view of the opinion that we have reached, it will be unnecessary to discuss the questions raised.

Appellee Washington failed to appear at the trial on the 16th day of February, 1921, and a judgment by default was rendered against him with writ of inquiry'and made final for the sum of $398.82 in favor of appellant. A jury was demanded, and, after the evidence had closed, the court instructed the jury to return a verdict in favor of appellee Powers, which was accordingly done and final judgment rendered for Powers with his costs.

Appellant complains under different assignments of the action of the trial court in giving the jury an instructed verdict against him and in favor of appellee Powers.

Appellant charges in his pleading that ap-pellee A. Washington was the agent of appel-lee Powers in the transaction in question and the cotton seed bought by appellant sold on sample; that the product was inferior to sample and there was a weight shortage; that A. Washington and appellee Powers agreed to stand for a deduction of $7 per ton from the price of the cotton seed and also to stand for the shortage in weight; that Powers drew the draft originally for the car of cotton seed; and that he had ratified the statements of Washington with reference to the cotton seed being according to sample, and had himself received the proceeds of the sale. Appellee Powers denied these allegations.

Appellant, having based his claim against Washington as agent and Powers as principal in the transaction in question, necessarily assumed and was charged with the burden of making out his ease as he had fixed it. The record is silent as to any transaction betweep appellant and appellee Powers, or any fact or circumstance which would tend to create the relation of principal and agent between Powers and Washington, or make them partners. Appellant testifies that after he was advised the cotton seed did not come up to sample, and that there was a shortage in weight, he talked with Powers over the phone, and that Powers first said he would adjust the weight claim, and that he had adjusted the dirt claim with Washington. This was denied by appellee Powers, but, if it had been undisputed, appellant could not, on his pleading, recover against Powers. Under appellant’s testimony, he would only have a .claim against Powers for the shortage in the weight of the car of cotton seed by reason of the agreement, if .believed, and would have no claim against him as a party to the original transaction either as a principal or as a partner. Appellant did not seek to recoverxfrom Powers on the agreement to pay for the shortage in weight of the car of cotton seed, but charged him to be a principal in the original transaction, and wholly failed to offer fact or circumstance tending eyen remotely to establish that relation. Such being the state of the record, it was the duty of the trial court to instruct the jury to return a verdict in favor of appellee S. G. Powers. It is unnecessary to review the otlier assignments, as they would not affect this opinion.

The judgment of the trial court is, accordingly, affirmed. 
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