Conclusions. We do not see our way clear to disturb either the court's findings or his judgment. In cases where the contract is executory, i. e., not fully executed, parties may, it is conceded, change or alter their contracts at will, and there is evidence in this case at least tending to show that the contract under consideration was not in fact fully completed at the time appellants executed the guaranty declared upon. It is true that the contract by its terms provided that delivery was to be made on the cars at Lockhart, but the accompanying provision that the draft should be attached to the bill of lading for the purchase price, coupled with the known custom of the carriers to demand possession of the bill of lading before delivery, at least tends to show that it was not the purpose of appellants at the time of the execution of the guaranty that delivery of the cotton seed to appellee should be fully completed until payment of the draft attached to the bill of lading. It is to be remembered that while appellants had the right to stand upon the contract of sale as written at the time of the receipt of appellee's letter countermanding the order, they nevertheless could waive such right, and, as it seems to us, the intent to do so was manifested not only by the terms of the written guaranty but by the correspondence between the parties continuing for months thereafter. In this view of the case, it would be unnecessary, in order to sustain the judgment, that a consideration for the guaranty be proven, for it is undisputed that thereafter the appellee, and at least apparently appellants, acted upon the assumption that the future action of the parties should be controlled by the terms of the guaranty, thus presenting the element of estoppel. See 40 Cyc. pp. 261, 263.
If, however, we should adopt the theory of appellants that the contract of sale had been fully completed at the time of the execution of the guaranty, and that hence the guaranty is without support in the absence of a consideration, yet it is not by any means clear that the evidence in this respect is insufficient to support the court's findings that there was a consideration for the execution of the guaranty. Without an analytical review of the cases, we think the following, when applied to the evidence in this case, tend to support the court's finding of a consideration, to wit: Teague v. Am. Natl. Ins. Co. (Tex.Civ.App.)215 S.W. 131; Bell v. Self (Tex.Civ.App.) 210 S.W. 304: Nations v. Williams (Tex.Civ.App.) 203 S.W. 1176: Hinton v. D'Yarmett (Tex.Civ.App.)212 S.W. 518; Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S.W. 442.
We conclude that the trial court's findings should be adopted, and the judgment affirmed.
Findings and Conclusions of Trial Court.
At the request of the defendants, by and through their attorneys, the court makes and files the following findings of fact and conclusions of law, which constitute the basis of its judgment rendered in the above cause at a former day of the above term.
Findings of Fact. I find:
(1) That on or about the 30th day of July, 1920, the plaintiff, W. J. Lovorn, placed an order with defendants' agent for 2,000 bushels of cotton seed, to be shipped on or about October 1, 1920, for which he was to pay $3.75 per bushel, delivered at Goree in Knox county, Tex.
(2) That plaintiff intended to order only one carload of seed, but through a mistake as to the number of bushels required to fill a car, he ordered two carloads of seed. (3) That after such order was placed, and before the date mentioned for delivery of the *Page 509 seed, market values and conditions general so changed as to make the contract oppressive upon the plaintiff, and he saw he could not sell the seed for the price agreed upon, if at all, and wrote defendants countermanding his order.
(4) That after such countermand was received by the defendants, they wrote the plaintiff the letter pleaded by plaintiff as follows:
"Lockhart, Texas. Oct. 4, 1920.
"Mr. W. J. Lovorn, Goree, Texas — Dear Sir: Referring further to your order for two cars of our Kasch Pedigreed seed, want to advise that as the seed have been shipped, we feel that you are due us some consideration, and we are therefore asking you to take up drafts promptly, and upon arrival of the seed, take them out and store them, selling all you possible can, and a little later we will put a man in your territory to help you place the balance.
"If you will grant us these favors, we will guarantee to you no loss in the deal, for as stated above, we will help you sell them, and in the event we cannot place all of them, we will take them off your hands, but we must ask that make arrangements with your bank to take up drafts promptly. Thanking you in advance for these favors, we are
"Yours very truly."
(5) That on September 27th and 28th the defendants shipped the two cars of seed from Lockhart, Tex., to plaintiff at Goree, Tex., and sent bills of lading therefor, with drafts for $6,700 to the First National Bank of Goree, Tex., and the two cars of seed arrived in Goree on October 2, 1920, and were unloaded and stored in warehouse for plaintiff by Drayman Roberts on October 4th and 5th and before the plaintiff received the above letter.
(6) That on October 11, 1920, the plaintiff went to the First National Bank of Goree, and, as an inducement for credit, told the bankers the contents of said letter and of his guaranty against loss therein, and procured a loan from said bank, paid the $6,700 draft, and the proceeds of same was sent to the defendants by said bank on said October 11, 1920, and plaintiff left said letter with the bank.
(7) That plaintiff at once procured insurance on said seed at a reasonable and necessary cost of $71 per quarter, and paid a total sum of $426 for such insurance, and that such was a proper and necessary precaution against loss.
(8) That plaintiff acted upon said letter and used due diligence in trying to sell the seed, and sold and used himself $221.10 worth, and incurred and paid a necessary and proper expense of $32 in so doing.
(9) That the defendants also relied and acted upon said letter, and treated their contract as governed thereby, as shown by their several letters copied in plaintiff's original petition, all through the cotton seed season, and up until the spring following, but failed to assist plaintiff in selling out same, and at the close of the season refused to take the seed off of the plaintiff's hands, or otherwise protect him against loss on said seed.
Conclusions of Law. 1. I conclude as a matter of law that the guaranty given by the defendants being in writ ing, it imports a consideration, and the evidence showing that the plaintiff relied upon same at the time he procured and paid the $6,700 purchase money for the seed, and that both parties treated same as governing their agreement during the entire season, the plaintiff paying the expenses of caring for the seed, and trying to sell same, such evidence fails to show a want of consideration for the guaranty, and that defendants are bound thereby.
2. I further conclude as a matter of law, the plaintiff having entered into the agreement to purchase the seed under a mistake by which he ordered two cars instead of one, and the conditions having changed to such an extent as to render the agreement oppressive upon him, this would bring the case within the rule laid down by our Supreme Court under which the novation in the contract would not require a new consideration, and that defendants are bound thereby.