
    EARLY-FOSTER CO. v. WILLIAM TACKABERRY CO.
    (No. 6592.)
    
    (Court of Civil Appeals of Texas. Austin.
    June 13, 1923.
    Rehearing Denied Oct. 3, 1923.)
    Sales <&wkey;39l(7) — Buyer held entitled to re- „ cover shortage in and damages to shipment.
    A sugar buyer held, entitled to the contract price per pound for a shortage in weight and a quantity ruined by spilling on the floor of the car in which shipped.
    Appeal from District Court, McLennan County; Jas. P. Alexander, Judge.
    Action by the William Tackaberry Com-; pany against the Early-Foster Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    S. R. Scott, of Waco, for appellant.
    J. D. Williamson and Allan V. McDonnell, both of Waco, for appellee.
    
      
       Writ of error dismissed for want of jurisdiction November 21, 1923.
    
   JENKINS, J.

Appellant sold to appellee a carload of Mexican brown sugar, at 18 cents a pound, f. o. b. Sioux City, Iowa, the car to contain 59,778 pounds. Appellant drew a draft on appellee for the amount of sugar at the price named, with bill of lading attached, which appellee paid before the arrival of the sugar. The sugar was to be shipped in sacks.

Upon arrival of the sugar at Sioux City the car was opened, and it was found that the sugar had not been shipped in sacks, but in containers made of small sticks of wood, lined with something liké cañé stalks and leaves. These containers, were piled on each other, five deep. It was found that the containers at the top were broken and the sugar spilled, in part, on the containers beneath. Appellant was at once notified of this condition, and it wired appellee to condition the sugar, ’and remove the same at appellant’s expense. This was done. The sugar that was fit for use was placed in sacks. It-was found as the tiers were removed that those below were in worse condition than those at the top. Tfyere was a shortage in the weight of the entire car of 3,194 pounds, which, at 18 cents a pound, the price paid by appellee, amounts to $574.92. In addition to this, there was 6,534 pounds of the sugar spilled upon the floor of the car, mixed with worms and dirt, and was wholly worthless. This, at the price paid, amounts to $1,176.12. Appellee sued for these amounts, and recovered judgment for the same.

The undisputed evidence shows the facts to be as- above stated, and as alleged by ap-pellee; for which reason the judgment of the trial court is affirmed.

Affirmed. 
      
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