I regret to differ with my associates. In my opinion, the motion for rehearing should be granted and the judgment of the trial court affirmed, for the reason that under the terms of the contract appellant was to deliver to the railway company at Kansas City for appellee, Blum Milling Company, 1,000 bushels of No. 2 red wheat on (or according to) Kansas City official weights and Kansas City official grades, and the jury found that the wheat actually delivered by appellant to the railway company at Kansas City was not No. 2 red wheat at Kansas City according to Kansas City official weights and Kansas City official grades, and the evidence was sufficient to support said finding. I do not believe the contract as drawn by appellant and accepted by appellee should be construed to mean that appellee would be bound by a grade as made by a United States grain inspector in Kansas City. Appellant did not allege that the United States Grain Standards Act was the same as the Kansas City official grade, and did not allege that Kansas City or Missouri did or did not have a statute fixing the standard or official grades of wheat. The testimony of the Missouri state weigher is that he weighed the wheat according to the official standard as fixed by the state of Missouri. The grader, Mr. Swearingen, stated that he graded it according to the standard as fixed by the United States government. We have in Texas a standard of official weights as same relate to grain and official grades and measures as relate to all kinds of fruits and vegetables. A standard bushel of wheat must weight 60 pounds. The weigher's certificate introduced in evidence shows wheat in controversy only tested 58 pounds. Articles 7846bbb-7846 1/4zzz, Vernon's Ann.Civ.St.Supp. 1922, and articles 990-993 of the Criminal Statutes (Pen. Code).
The parties to the contract were to sell and accept No. 2 red wheat based on or governed by the official grades as established in Kansas City, but as to whether the wheat actually delivered was No. 2 wheat based on the Kansas City official grades and weights was a matter of proof to be established by competent testimony under the rules of evidence laid down for trial of issues in our court. The grades and weights made by officials in Kansas City and evidence by other parties that were competent to testify as to the grade of wheat was introduced in evidence, and the jury found that the wheat was not No. 2 red wheat according to the Kansas City official grades and weights, as required under the contract. *Page 558