Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63. Page: 71
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1885.] ULLMAN, LEWIS & Co. v. BABCOCK. 71
Opinion of the court.
These letters not only showed the agency of De Milly, but within
themselves furnished proof of the execution of the contract by the
agent, and of its terms, and the appellants' knowledge thereof; all of
which, most probably, in the ordinary course of business, was derived
from the duplicate forwarded or delivered to the appellants by
De Milly.
The court gave to the jury the correct rule on the measure of
damages, and the jury could not have been misled by the fact that,
in the charge of the court, the word "value" was not qualified by
the word "market."
The evidence introduced to show the value at Laredo at the time
at which, under the contract, the whisky should have been delivered
was such as, under the facts of thecase, was admissible for the purpose
of showing the market value at Laredo, and none other. We
see no reason to doubt that a person who, by executory contract,
has contracted to sell and deliver merchandise on a credit, may refuse
to deliver in case of the insolvency of the purchaser, as rightfully as
a seller may arrest merchandise in transit, when the contract has been
so completed as to vest the title in the purchaser if he be insolvent.
The court instructed the jury that the appellants had the right to
refuse to deliver if the appellee was insolvent, and gave the charge
asked by appellants as to what would constitute insolvency.
There was evidence tending to show that the appellee was solvent
at the time the whisky should have been delivered, and the finding
of the jury on this issue is conclusive of that question.
That the simple neglect to pay a debt, or the levy of an attachment
on a debtor's property, is not proof of insolvency is certainly
true.
The evidence was conflicting as to the market value of the whisky
at Laredo at the time at which it should have been delivered, but
there was evidence reasonably tending to show that its value there
was such as to justify the verdict; and it was for the jury to judge
of the credibility of the witnesses, and the weight to be given to
their testimony.
They having believed the testimony of the witnesses for the appellee,
and there being nothing to induce the belief that the jury
did not properly weigh the evidence, that there was evidence from
which they might have come to a different conclusion furnishes no
reason why a new trial should have been granted, and the court
below correctly so ruled.
There is no error, and the judgment is affirmed.
AFFIRMED.
[Opinion delivered January 16, 1885.]
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28511/m1/95/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .