Whitis v. Polk

Citations

• 36 Tex. 602

Syllabus

<p>1. When mutual contracts are not fully and. definitely expressed, the law requires that such a construction be placed upon them as will secure to each party equal and exact justice. See this case for an illustration of the application of this principle.</p> <p>2. In May, 1864, W., a citizen of Texas, proposed to P., also a citizen of Texas, that if the latter would buy a certain lot of cotton, he, W., would bear all the expense of transporting it from the interior of Texas to the Mexican market, and selling it; and would account to P. for one-half of the proceeds' to be derived from the sale of the cotton in Mexico. P. . accepted the proposition, purchased the cotton, and delivered it to W., who took it by way of Piedras Negras into Mexico, whence it was ultimately forwarded to New York and sold. P. sued W. for half of the alleged gross proceeds of the cotton. EM, that the contract must be construed to have constituted the parties equal half owners of the cotton when it reached Piedras Negras, the first Mexican market for cotton: that, inasmuch as the plaintiff’s pleadings recognized that the defendant was invested with the discretion to sell the cotton in any market he might select, this establishes the fact that either the relation of partners or that of principal and agent subsisted between the parties : hence, conceding the legality of the contract, the plaintiff was bound to sustain one-half of all expense or loss incurred upon the cotton after it was sent forward from Piedras Negras. But held further, that the contract and the entire transaction between the plaintiff and the defendant, for the exportation of the cotton beyond the limits of the United States, were in violation of the revenue laws of the United States, and of the policy of the United States during the rebellion; and as the nature of the contract and the character of the transaction are apparent on the face of the plaintiff’s petition, the court below erred in overruling the defendant’s demurr