On Motion for Rehearing.
We are not convinced of error in our conclusion as announced in the brief opinion filed on February 25, 1933, by a.review of the authorities cited in the motion. The case as we construe it is- not one based upon an incidental requirement of a contract as treated in the case of Bomar Cotton Oil Co. v. Schubert (Tex. Civ. App.) 145 S. W. 1193, pressed upon us in behalf of appellants, but one, as we think, that has for its basis a violation of a written contract. The bill of lading and its indorsement by the shipper, with draft for payment attached thereto, is certainly treated as a contract in writing as we construe the opinion of Judge Greenwood in the case of Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 60 A. L. R. 672. Thereby the shipper agrees to convey title and deliver to the .consignee the grain shipped upon payment of the draft. By the payment of the draft by the appellee it then, and not before, acquired title to the cotton seed. As must-be held we *228think, such a sale included an implied warranty on the part of the seller that the grain so transferred was of merchantable quality, and the basis of this suit in substance is upon the breach of the agreement necessarily embodied in and implied from the bill of lading and payment of draft.
The motion for rehearing is overruled.