# Blanton v. Sherman Compress Co.

> Court of Appeals of Texas · February 13, 1953 · 256 S.W.2d 884

URL: https://www.frixlaw.com/law-library/cases/9681735

## Case

- **Full name:** Blanton v. Sherman Compress Co.
- **Court:** Court of Appeals of Texas
- **Decided:** February 13, 1953
- **Citations:** 256 S.W.2d 884; 1953 Tex. App. LEXIS 2290
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Dixon
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

On Motion for Rehearing.
In his motion for rehearing defendant points to the third to .the last paragraph in our opinion and says that we have misunderstood him; that in no place in his brief has he made contentions as to the lack of authority of the president of the plaintiff corporation to grant concessions from the so-called tariffs.
The challenged paragraph .was written in response to these points, which are copied from appellant’s brief:
“(1) The court erred in permitting plaintiff’s manager, Grafft, to testify that the president of the Company instructed him what to do along different things pertain *889 ing to charges, and could tell him what to ■do and when to do it.
“(3) The court erred in permitting plaintiff’s manager, Grafft, to testify that, notwithstanding his authority was to take over ■and manage the compress, he expected Mr. L. O. Blanton, Sr., the president, to direct the operation of the compress at all times.
“(4) Even if plaintiff had proved, as alleged, that the defendant had told Grafft that the president of the Company (defendant’s father) had agreed that defendant would be charged transit rates for cotton, though the cotton was to be handled and treated as concentrated cotton, still, as a matter of law, this would not constitute fraud.
“(8) Plaintiff did not prove, as alleged, that Grafft was subj ect to the direction and control of the president of the Company in fixing prices to be charged plaintiff’s ■customers.”
We call attention especially to the objection in the first point to the testimony that the president “could tell him what to do and when to do it,” and the statement in the eighth point that the plaintiff did ■“not prove, as alleged, that Grafft was subject to the direction and control of the president of the Company in fixing prices to be charged plaintiff’s customers.”
It seemed to us that the four points reproduced above set up the contention that plaintiff had the obligation to prove and bad failed to prove with competent testimony that the president of the company had authority to order Grafft to make concessions from the so-called tariffs. If we misinterpreted the meaning of the points, we are glad to clarify the situation by stating that defendant disclaims having “advanced the contention to the effect that the president of a corporation does not have authority to grant concessions from so-called tariffs.”
Defendant contends that Grafft himself had authority to grant and did grant the concessions in question. Even if Grafft did have the authority himself to grant concessions, as defendant contends, we think he would still be subject to the control and direction of the president, who could tell him what to do and when to do it in the matter of granting concessions. Whatever his authority may have been, Grafft testified that he did not himself in fact grant the concessions', but that they were granted only because he believed that the president had sent him instructions by defendant to that effect.
Defendant also says that We erred in overruling his Seventh Point that “Plaintiff has not shown that it suffered injury.”
Plaintiff’s theory of the case is that it was induced by false representations to charge defendant only its rates for handling transit cotton, whereas, but for such representations, it would have charged defendant its much higher rate for handling concentrated cotton. The difference in the two rates amounted to a total, according to plaintiff, of $9,470.37.
Defendant counters by saying that if plaintiff had attempted to charge the higher rate, he, defendant, would have sent his cotton elsewhere, or in any event would have greatly reduced his volume and plaintiff thus would have lost all or a great part of defendant’s cotton business for the season. As it was a poor season and plaintiff had fixed overhead charges to meet, it would have hurt plaintiff badly if it had not obtained defendant’s business, even at the lower rates.
It is true that defendant testified he would have sent his cotton elsewhere or would have, reduced his volume if plaintiff had attempted to charge him the higher rates; and no one. contradicted his statement. But defendant is an interested party and his testimony alone, though uncon-tradicted, raised only a fact issue to be determined at a trial on the merits by the court or the jury. Seaboalt v. Vandaveer, Tex.Civ.App., 231 S.W.2d 665 .
We believe that under the record before us plaintiff raised a fact issue as to whether there was injury sustained, which issue involves a number of factors. The question must be submitted to the fact finder at a trial oh the merits.
Motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681735. Public record. Not legal advice.