E zwx GENE
OF a‘EXA.S
Honorable Fred West Opinion No. C- 105
County Attorney
Lubbock County Re: Whether the operator of
Lubbock, Texas a commercial feed lot, who
conducts his business as
outlined, is subject to
the re uirements of Arti-
Dear Mr. West: cle 388 le, v.c.S.
We quote asp follows from a letter addressed to you from
R. K. Harty, a Lubbock attorney, which accompanied your request for
an opinion from this office:
"It is respectfully requested that you ask
the Attorney General of the State for an opinion
as to whether or not the operator of a commercial
feed lot', who conducts his business in the manner
outlined below, is required to pay the Inspection
fee, keep the records, and,otherwlse meet the re-
quirements of the above statute rticle 388le,
Revised Civil Statutes of Texas which is also known
as the 'Texas Commercial Feed f ontrol Act of 1957.'
It Is our belief that the operation In question is
not subject to the statute. . . .
"The operator in question contracts with the
owner of cattle to care for and feed them at his
own place of business, using his own facilities
and furnishing the necessary labor, supplies and
feed stuffs. Generally speaking, the cattle are
fed a mixture of ingredients which the operator
of the feed lot acquires from other parties and
mixes In his own machinery, to his own specifica-
tions. He may, however, on occasions supply the
cattle with feed which is already mixed by other
parties, and he may supply some feed stuffs which
he does not mix, but feeds in conjunction with
other materials, simultaneously or seriatim. He
bills the owners of the cattle weekly or monthly,
on the basis of the cost of the feed stuffs used,
plus a charge for the use of his facilities and
the services of himself and his employees. The
risk of death losses is on the owner of the cattle.
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Honorable Fred West, page 2 (C-105 )
The operator makes no guarantee of results, and
his compensation is not dependent upon the gain
in weight achieved by the cattle, nor uponthe
profitrealized from their sale. Normally; the
operator uses his own judgment as to the composl-
tlon of the mixture fed to the cattle.”
Senate Bill No. 18, 55th Legislature, Regular Session,
1957, is codified as Article 3881(a), Vernon’s Civil Statutes, This
Act Is also known as the Texas Commercial Feed Control Act of 1957.
Section 21 of Senate Bill No. 18 recites the public necessity of the
Act as fo~llows:
Emergency Clause
“Sec. 21. The fact that present laws are
not adequate to regulate the manufacture and sale
of commercial feed in Texas; the fact that raisers
in Texas of livestock, poultry, and other animals
need uniform guaranties and labeling of feeds which
are offered to them; and the further fact that it
would be of great material advantage to have the
laws of Texas conform insofar as practicable with
the present day practices of feeders and feed~manu-
facturers, and to afford maximumprotection to the
purchas,ers of feed, create an emergency and impera-
tive necessity. . .”
The Texas Commercial Feed Control Act of 1957 regulates
the manufacture, sale, offering for sale and distribution for sale
of commercial feed as defined in the Act. The regulations contained
in the Act most pertinent to our discussion are summarized as follows:
Se&Ion 5. Provldes for the registration of each brand
of commercial feed, except customer-formula feed, with the Director
of the Texas Agricultural Experiment Station before such feed Is of-
fered for sale, sold or otherwise distributed In the state.
Section 6. Requires manufacturers or other persons,~ before
;;;;;ng, delivering, or offering for sale any commercial feed In the
except customer-formula feed, to place on the outside of the
container a label bearing detailed Information with regard to the con-
tents of the container.
Section 7A. Requires that “persons engaged In the manufacture,
sale, or distribution of commercial feeds or the components of com-
mercial feeds to pay to the Director. . .an Inspection fee of Ten Cents
(lO$) per ton on all such commercial feed.”
-515-
. -
Honorable Fred West, page 3 (C-105 )
Section 7D. Requires that each person who Is Issued a
permit to sell, offer for sale or otherwise distribute commercial
feed and pays the inspection fee In accordance with the tonnage tiei
porting system to maintain and file such records and reports & the
Director at his discretion is authorized to require.
Section 13. Declares certain acts to be unlawful; Sub-
sections (b) through (g) of~Sectlon 13 of the Act each relate 'tom
an activity described as "to sell, offer, expose or dlstribute'for
sale. . ." commercial feed not in accordance wlth.the provisions
of specifically named sections of the Act.
Section 14. States that the performance of any act declared
as unlawful under Section 13 "shall, upon conviction, be guilty of
a misdemeanor. . ."
The question of whether a commercial feed lot operator
who operates his business as outlined in the facts submitted Is
subject to the regulations of the Act is resolved by determining
If the operator sells, offers, or exposes or distributes for sale
commercial feed as contemplated by the Act.
The bailment of animals for the purpose of grazing and
pasturing is termed
1021 (Tex.Clv.App.,
arises under a contract which provides for the bailor supplying the
cattle or other animals of the bailee with sufficient water and grass,
Tuttle v. Moody, 100 Tex. 240, 97 S.W. 1037 (1906) for a stated period
f time at a designated consideration. Presley v. Cooper, 155 Tex.
;68, 284 S.W.2d 138 (1955).
Other than the difference in the primary type of food
supplied, we see no distinction between the aglstment where the
agister provides for the pasturage of cattle or other animals com-
mitted to his care on lands owned or controlled by him and the
aglstment where the aglsterprovides for the care and feeding of
such animals In a commercial feed lot under his management or owner-
ship.
When a controversy arises in an agistment as to whether
the contract price for pasturage of cattle is in Issue, evidence
as to the reasonable value of the pasturage for the contract term
Is admissible. Carver, et al. v. Power State Bank, 164 S.W. 892
(Civ.App. 1914, dism. w.o.d.1. In th e absence of a contractual
provlsibn ii the agistment-c&tract concerning remuneration, an
agister is entitled to the reasonable value of his services. Cren-
shaw v. Bishop, 143 S.W. 284 (Civ.App. 1911).
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Honorable Fred West, page 4 (c- 105)
It thus appears that an agistment comes within the rule
that where service predominates and the transfer of personal property
and the delivery of personal property Is merely an incident to the
contract, the contract Is one for "work, labor and materials" and
not one of sale. Bogata Mercantile Co.-v. Outcault Advertising Co.,
184 S.W.333 (Tex.Clv.App. lglb); Crystal Recreation v. Seattl
Association of Credit Men, 209 P.2d 356 (Supreme Ct. Wa8 h ., l&9);
perlmutter v. Beth David Hospital, 123 N.E.2d 792 (Ct. of Appeals,
N.Y 1954) m. . Wise and Co. v. Rand McNally and Co., 195
F.S;pp. 621 ?io. Dist. New York, lgbl).
The term "sale" Is defined In 37A Tex.Jur. 38, Sales,
Sec. 2 as "a transfer of personal property from one person to another
for a price in money or for property of an agreed money value." The
same term Is defined In Section 1 of the Uniform Sales Act as an agree-
ment whereby the seller transfers the property In goods to the buyer
for a consideration called the price. Only the most strained con-',
structlon of the facts submitted could result in a conclusion that a
commercial feed lot operator sells feed to the owner of cattle or
other animals committed to his care.
There is no point of time at which title to the feed passes
from the agister to the ballee. The aglster does not contract to
sell any particular type of feed, nor Is there any time at which the
bailee can demand any certain quantity of feed. A contractis not
sufficiently certain, to be enforced, If it falls to sweclfs the auan-
tlty of goods to be sold or bought and the amountthereof,,i-a:en-. --
tirely optional with the seller or buyer. Miller v. Vought and Taylor
Const. Co., 345 S.W.2d 852, (Civ.App. 1961, error ref. n.r.e.).
Rule Number 10 of the Rules and Regulations adopted by
the Texas Feed Control Service under the Texas Commercial Feed
Control Act of 1957 reads as follows:
"Any person who feeds commercial feed to animals
pursuant to a contract whereby such commercial feed
Is supplied, furnished or otherwise provided to such
person and whereby such person's remuneration Is de-
termined or affected all or in part by feed consumption,
mortality, profit or amount or quality of product, is
subject to the registration, labeling, sampling, ln-
spectlon fee and other provisions of the feed law and
rules and regulations."
We interpret this rule to Include only those situations
where a contract of sale exists between a feeder and purchaser of
commercial feed for a certain type and quantity of commercial feed
-517-
Hon. Fred West, page 5 (C-105 )
at a fixed price to be fed by the seller to the animals of the pur-
chaser over an agreed period of time. Given this interpretation,
Rule 10 has no applicability to the facts at hand. On the basis
of the authorities discussed, Interpreted In the light of the facts
submitted, it Is our opinion that the operator of the commercial
feed lot in question does not sell, offer, expose, or distribute
for sale, commercial feed within the contemplation of the provisions
of,the Texas Feed Control Act of 1957.
SUMMARY
The operator of a commercial feed lot, who conducts
his business as outlined, is not subject to the registra-
tion, labeling, inspection fee and other provisions of
the Texas Commercial Feed Control Act of 1957 and the
Rule Number 10 of the Texas Feed Control Service adopted
thereunder.
Very truly yours,
WAGGONER
CARR
1RW:ms:mkh
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
John Reeves
Ben Harrison
J. S. Bracewell
Howard Fender
REVIEWEDFOR THE ATTORNEY
GENERAL
BY: Stanton Stone
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