On Motion for Rehearing.
In an elaborate argument upon motion for rehearing appellee insists that we have committed grave error in our holding, predicated upon Scott v. Grain Co., 113 Tex. 127, 252 S. W. 164, in two respects: (1) Because in Scott v. Grain Co. the grain was actually shipped, and the suit was upon the guaranty of weight at destination, which had been breached; whereas here there was bo breach of the guaranty but a total failure to ship at all. (2) Because the writings sued on named no certain place of destination, but merely named “Dallas, unless otherwise advised.”
After conceding for purposes of the decision that under the contract in Scott v. Grain Co. the title passed to the buyer at point of shipment, the following construction of the contract guaranteeing destination weights is given:
“Independently of the question of ownership of the seed, there was unquestionably a contract in writing by which the seller guaranteed that he would deliver or that he would be responsible for the carrier’s delivering at Lubbock the quantity of seed (by weight) specified in the contract.”
This construction of the contract we think clearly concludes the proposition first presented adversely to appellant. If there was a contract to deliver or to be responsible for the delivery of a certain quantity of maize heads at a certain point, it was as much a breach of that contract to fail in toto to deliver or cause to be delivered, as to so fail only in part. The cause of, the breach was immaterial, whether from failure to ship, or from destruction of the commodity in transit, or otherwise.
Upon the second proposition we need only quote that part of the order in Scott v. Grain Co. which formed the basis of that suit regarding point of destination: “Unless otherwise ordered, bill to us at Lubbock.” We are not able to grasp the distinction between that language and, “destination Dallas, unless otherwise advised.”
Motion overruled.
Overruled.