Carver Bros. v. Merrett , 1916 Tex. App. LEXIS 364 ( 1916 )

By the first, second, and third assignments of error, which may be here considered conjointly, the appellants urge that the legal effect attaching to the evidence respecting the ground of venue is to deny the legal right to appellee, Merrett, to bring suit against the appellants in Titus county, and that they were entitled to have the case transferred for trial to the district court of Collin county, the county of their residence. It is believed that the assignments must be overruled. Appellee, Merrett, sued the appellants in two counts: (1) Upon an account for money advanced and paid by the bank; and (2) for damages laid in conversion in Titus county of collateral security pledged to the bank to secure the payment of the account. The bank was joined as a party, and sued as assignor and guarantor of both the account and the claim for damages. Being a bona fide holder for value of the account, as appellee Merrett claims he was, he may bring the suit thereon against the bank, as assignor and guarantor of the account jointly with appellants, who were primarily liable on the account, in the county of the residence of the bank, which was in Titus county. Article 1842, R.S.; article 1830, subd. 4, R.S.; Improvement Co. v. Bank, 136 S.W. 558, and authorities there cited. But it is entirely immaterial and unnecessary to decide in this appeal, it is believed, the question of whether or not the transfer of the account to appellee, Merrett, was real and in good faith for value, for the charge of the court did not permit nor authorize a recovery against appellants upon the account, but only for damages, for the tort of conversion. And the charge of the court made the venue of the suit in Titus county dependent upon the sole ground of the tort's being committed there and appellants' being responsible therefor. The charge in respect to venue is:

"If you find from the evidence that said Carver Bros., and each of them, were resident citizens of Collin county, Tex., at the time this suit was filed, and have been continuously, and are now, and were not then nor have been since residents of Titus county, you will find for the defendants Carver Bros., unless you find for the plaintiff against them on one or the other of the next following paragraphs of this charge."

The next two paragraphs following allowed venue in Titus county upon a finding that there was a conversion of the collateral security by appellants through their agent and representative in Titus county within the scope of the agency, and upon a finding that the bank did not negligently permit the agent to abstract the security. The charge would therefore seem to show that the court himself concluded that venue did not lie in Titus county against the appellants on the account, or that election was made by appellee to rely for recovery only upon the count for tort. The appellee may not recover upon both the account and the tort, for it would be double recovery, and it was a case that appellee should elect to recover upon one of the counts. So eliminating, as the present record does, any question of venue respecting that count in the petition on simple account for money advanced and paid, the precise question would be whether the suit was maintainable against appellants in Titus county, as the proper county of venue, for damages for the alleged conversion of the securities. Article 1830, subd. 9, allows suits to be brought in the county ``"where the trespass was committed," when "the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie." Jones' Pledges and Collateral Securities (2d Ed.) § 45, lays down the rule as follows:

"A pledgee may maintain an action of trover against his pledgor for a conversion of collaterals which the former has returned to the latter for a special purpose. * * * After the special and temporary purpose for which a pledge has been redelivered to the pledgor has been accomplished, the pledgee may recover it or its value by action."

See, also, 2 Cooley on Torts (3d Ed.) pp. 859, 866.

That sufficiently shows that a civil action in damages may lie in the facts. And it is believed that "trespass," as meant by the statute and defined by the cases, includes the act of conversion here present. Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L R. A. 618; Ricker v. Shoemaker,81 Tex. 22, 16 S.W. 645; Ward v. Odem, 153 S.W. 634. In a conversion the taking and appropriating: are intended, and not merely negligent. And withholding lawful possession of the pledgee is, while it continues, an injury by force, constituting it a trespass on possession of the owner. 2 Cooley on Torts (3d Ed.) p. 839. Thus all the elements of a "trespass," as defined, are present, and, further, the criminal statutes make punishable the taking and appropriating of property pledged from the pledgee entitled to possession. Articles 1335, 1336, 1332, Cr.Stat. of 1911. Consequently, if "trespass," as used in the statute, could only be regarded as comprehending matters legally kindred to "offense or crime," which are the words associated with it in the sentence, the conversion here by the agent would be within the class of "trespass" intended by the statute pertaining to venue. This would be in line with, rather than opposed to, the rule of construction followed in Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, Ann.Cas. 1914B, 368. It is quite true that the appellants themselves could not be held criminally responsible for the trespass here. But appellants, acting through an agent, were, in legal principle, bound to see that no one suffered legal injury through the agent's wrongful act done in their service within the scope of the agency. The agent committed the act and wrong in Titus county. The injury done to appellee and the bank by the act or wrong was in Titus county. And upon the ground of being made legally chargeable with the conduct of their agent, acting within the real or apparent scope of his authority, the appellants could be sued for the damages, it is thought, in the county where the trespass was committed. Connor v. Saunders, 9 Tex. Civ. App. 56, 29 S.W. 1140; Wettermark v. Campbell,93 Tex. 517, 56 S.W. 331. The question of whether the act was committed by the agent within either the real or the apparent scope of his authority was a matter of ultimate decision here for the jury, and their finding that it was in either respect would fix venue on the principal where the trespass was committed.

While the charge was not technically correct in placing the burden of proof respecting the plea of privilege on the appellants (Holmes v. Coalson, 178 S.W. 628), yet, it is concluded, the error does not in the record warrant reversal; for the charge practically put the burden of proof on the plaintiff. The charge required the jury to find for appellants on their plea "unless you find for plaintiff on one or the other of the next following paragraphs." Rule 62a (149 S.W. x).

The verdict of the jury reads:

"We, the jury, find for the plaintiff on the merits of the case against the defendants Merchants' Planters' National Bank to the amount of $1,773.39. We further find for the said Merchants' Planters' National Bank over against Carver Bros. to the amount of $1,208.77."

The point is made by proper assignments that the verdict did not authorize a judgment in favor of plaintiff, Merrett, against Carver Bros. as was entered by the court. The manner in which the issues were submitted and the jury directed the verdict necessarily involved a finding on the liability of appellants in favor of appellee, and should be so construed. The charge peremptorily directed the jury to return a verdict against the bank in favor of appellee. This was proper because the bank confessed liability on its guaranty of the claim for damages assigned by it to plaintiff. And the charge further directed the jury as follows:

"If you find for the plaintiff on the merits of the case against the defendant Merchants' Planters' National Bank and defendant Carver Bros., you will further find for the bank against Carver Bros. the amount so found and stated in your verdict."

Thus before the jury could find for the bank against the appellants they must also find for plaintiff against both the bank and appellants. And finding, as the jury did, that appellants were liable to the bank, necessarily includes in the verdict a finding of fact that appellants were liable in damages for the tort. The appellants being primarily liable, and the bank having assigned and guaranteed to plaintiff the claim for damages, as shown by the pleadings and charge, the finding of fact that appellants owed the bank damages in the sum found legally operated to be a finding of liability in favor of plaintiff. A like contention based on a similar verdict was overruled in McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 S.W. 229; and we see no reason why a different ruling should be made in this case. The instant question is not analogous to the cases cited by appellants. A verdict against a partnership authorizes a judgment against the members thereof that have been cited or answered.

If Pierce, acting within the scope of his authority as the agent of appellants, obtained possession of the cotton tickets for the purpose of making a cotton list, and thereafterwards refused to deliver possession of the tickets to the bank, appellants, we conclude, would be liable to the bank for damages, and consequently appellee for damages occasioned by such refusal The possession of the tickets by Pierce under these circumstances would legally operate to be the equivalent of the possession of appellants, and Pierce's refusal to return them to the bank would be the equivalent of appellants' refusal to do so. And it is not thought, as appellants insist, that it conclusively appears that Pierce, in securing possession of the tickets, was not acting within the scope of authority actually conferred upon him by appellants. According to the letter of appellants to the bank introducing Pierce to the bank officials, such bank officials were advised that Pierce would "represent us [appellants] in your city." The bank had the right, it is believed, to construe the language to mean that appellants had authorized Pierce to do everything usually, customarily, or necessarily done by a nonresident cotton buyer's local agent in the transaction of his principal's business. 1 Clark Skyles' Agency, § 194. There was evidence going to support a finding of fact that it was usual and customary for such agent to ship out cotton purchased for his principal, and there is evidence to support a finding that it was necessary for such agent to have possession of the tickets representing the cotton to be shipped, in order to list and ship out the cotton. As to whether or not the bank was negligent in letting Pierce have access to the tickets was a question for the Jury. And the evidence presents, it is thought, an issue of fact, requiring decision by the jury, respecting the several matters urged by appellants both in defense of liability and in offset. It is therefore concluded that the court did not err in refusing to peremptorily instruct a verdict for appellants, and assignment of error No. 9 is overruled.

We have considered the remaining assignments, and overrule each of them upon the ground that no such error appears as would require a reversal of the judgment.

Affirmed.