                 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.


                                    -514-
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.”


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.    -




    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).



                                         -516-
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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