Moore v. Conway ( 1937 )

Appellant insists that the findings of the jury, (1) that there was no agreement between appellant and R. O. Bass, acting for Bosque Mill Elevator Company, by which the purchase of the Clement Grain Company's car of wheat was to be financed out of appellant's oats, and (2) that there was no agreement between appellant and R. O. Bass, acting for Bosque Mill Elevator Company, that such car of wheat when purchased was to be appellant's property with the privilege of the mill company taking and paying for portions of the wheat as it used such portions thereof in grinding, are not only not supported by any evidence, but are so clearly against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The contention that this wheat was to be appellant's property, when purchased, is supported only by appellant's uncorroborated testimony, and the contention that the purchase of same was to be financed out of appellant's oats may be, in addition thereto, supported also to some extent by the circumstances of the failing condition of the mill company and the fact that the wheat was partly paid for with oats. The relevant and pertinent portions of appellant's testimony are: "Bass was in need of hard wheat and he didn't have the cash to buy it with. He really wanted to borrow the money and I told him `No'. Bass wasn't able to buy hard wheat in car load lots. I told Bass I would furnish him oats enough to pay for his wheat, provided he would pay me when he ground this wheat, because we were getting a little extra price for the oats by making that kind of a trade with him in oats. I told him I would furnish the oats, enough to buy his hard wheat with, provided it would be my wheat until it was ground up and he paid me for it. He was to pay me as he ground it. I had about ten or twelve thousand bushels of oats there at that time. Bass got a car load of hard wheat from Clement Grain Company following that. Bass and I had a settlement afterwards and the amount of oats I had furnished him on this car of hard wheat amounted to something like 3200 bushels. I do not know to whom he sold all of the oats. He sold most of them to Clement's. I saw two truck loads shipped to Clement's. A truck load holds about 300 bushels. Bass was to pay for the hard wheat as he used it. He made three payments on it, aggregating $656.35. He wanted to borrow the money. I says `No'. `You have got too much money in stuff there now, if you can trade Clement's oats for wheat, you can go ahead and do it.' That was all that was said to him. I did not furnish Mr. Bass with anything besides oats to buy that wheat with." The Clement Grain Company's records show that the car of hard wheat was billed to Bosque Mill Elevator Company on February 5, 1934; that same contained 1,400 bushels of wheat; that its price was $.97 per bushel; that the purchase price for the car of wheat was $1,358; that a credit of $845.10 was allowed for oats delivered to Clement Grain Company by Bosque Mill Elevator Company; that draft for balance of purchase price, in the sum of $512.90, was drawn on and paid by Bosque Mill Elevator Company. The wheat was purchased in the name of Bosque Mill Elevator Company, which company paid part of the purchase price in cash. The wheat was delivered to it and stored by it in its elevators. Part of the wheat was mixed with other wheat belonging to it and manufactured into flour and such manufactured products sold and the proceeds thereof deposited to its credit. W. B. Oswald testified that appellant told him on April 15, 1934, that the only claim he had against Bosque Mill Elevator Company was a deed of trust against the buildings and grounds. There was testimony to the effect that appellant had told the witness Wallace Balor to keep quiet and not tell anybody anything.

It is true, no witness was produced who did or could testify that the conversations detailed by appellant did not take place as related by him, but the record indicates that appellant's manner of testifying was not convincing; that it was reluctant; that the parties were antagonistic; that some of his material statements were indirectly contradicted by circumstances; that his statements were neither clear nor consistent; that there were attendant circumstances which cast doubt on the verity and accuracy of his testimony. For instance: (a) He did not mention his ownership of wheat when talking to Oswald; (b) he says he was to be paid for wheat as used by mill company at rate of $.97 per bushel and that he was paid for wheat used in the sum of $656.35, yet his testimony and that of his witnesses show that there had been used only 382 bushels of this wheat at the time he took possession of it; (c) on direct examination he testified: "I told Bass I would furnish the oats, provided the wheat would be mine until it was ground up and he paid me for it." And on cross-examination he said: "He (Bass) wanted to borrow the money. I says `No'. * * * if you can trade Clement's oats for wheat, you can go ahead and do it. That was all that was said to him (Bass)."

Appellant is a vitally interested party. His credibility and the weight to be given to his testimony were for the jury to determine. They were not bound to accept as true what appellant said, and, if they disbelieved him or doubted the accuracy of his statements, then they had the right to disregard all, or any portion, of his testimony and look to the other facts and circumstances in the case in arriving at their decision, and their finding is conclusive, because, if his testimony is ignored, then there is no evidence in this record tending in anywise to show ownership of wheat in appellant. Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447; Houston E. W. T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S.W. 971; Cheatham v. Riddle, 12 Tex. 112; Coats v. Elliott, 23 Tex. 606; Sigmond Rothchild Co. v. Moore (Tex.Com.App.) 37 S.W.2d 121; Thraves v. Hooser (Tex.Com.App.) 44 S.W.2d 916; American Surety Co. v. Whitehead (Tex.Com.App.) 45 S.W.2d 958; Mills v. Mills (Tex.Com.App.) 228 S.W. 919; Carwile v. Roberts (Tex.Civ.App.) 11 S.W.2d 549; Krueger v. Bankers Lloyds (Tex.Civ.App.) 45 S.W.2d 363; Clem v. Fulgham (Tex.Com.App.)14 S.W.2d 812; Galveston H. S. A. Ry. Co. v. Murray (Tex.Civ.App.) 99 S.W. 144; First National Bank v. Howard (Tex.Civ.App.)174 S.W. 719; International G. N. Ry. Co. v. Johnson,23 Tex. Civ. App. 160, 55 S.W. 772; Stone v. City of Wylie (Tex.Com.App.)34 S.W.2d 842; Sovereign Camp v. Jackson (Tex.Civ.App.) 138 S.W. 1137; Gonzales v. Adoue (Tex.Civ.App.) 56 S.W. 543; Jones v. Jones (Tex.Civ.App.) 146 S.W. 265; Williams v. Burke (Tex.Civ.App.) 108 S.W. 160; Heisig Rice Co. v. Fairbanks, Morse Co., 45 Tex. Civ. App. 383,100 S.W. 959; Missouri K. T. Ry. Co. v. Harris,45 Tex. Civ. App. 542, 101 S.W. 506; Groves v. Whittenberg (Tex.Civ.App.) 165 S.W. 889; Goodrich v. Pandem Oil Corp. (Tex.Com.App.)48 S.W.2d 606; North v. North (Tex.Civ.App.) 2 S.W.2d 481; Smalley v. Octagon Oil Co. (Tex.Civ.App.) 82 S.W.2d 1049; Free v. Smith (Tex.Civ.App.) 80 S.W.2d 419; Tanner v. Drake, 124 Tex. 395, 78 S.W.2d 162; Aetna Casualty Surety Co. v. Tobolowsky (Tex.Civ.App.)73 S.W.2d 556; Shepherd v. Woodson Lumber Co. (Tex.Civ.App.)63 S.W.2d 581; Transcontinental Ins. Co. v. Frazier (Tex.Civ.App.)60 S.W.2d 268; Chicago Fire Marine Ins. Co. v. Harkness (Tex.Civ.App.) 58 S.W.2d 171; Fagg v. Benners (Tex.Civ.App.) 47 S.W.2d 872; Hobart National Bank v. Fordtran (Tex.Civ.App.) 122 S.W. 413; Franklin Life Insurance Co. v. Villeneuve, 29 Tex. Civ. App. 128, 68 S.W. 203; Stitzle v. Evans, 74 Tex. 596, 12 S.W. 326; Pridgen v. Walker, 40 Tex. 135,136; Crosby v. First Presbyterian Church, 45 Tex. Civ. App. 111,99 S.W. 584; Keton v. Silbert (Tex.Civ.App.) 250 S.W. 316; First National Bank v. McWhorter (Tex.Civ.App.) 179 S.W. 1147; Rayner v. Posey (Tex.Civ.App.) 173 S.W. 246; Brannan v. First State Bank (Tex.Civ.App.) 211 S.W. 945; Wichita Falls Traction Co. v. Berry (Tex.Civ.App.) 187 S.W. 415; Guaranty State Bank v. Roark (Tex.Civ.App.)243 S.W. 591; Lasater v. Jamison (Tex.Civ.App.) 203 S.W. 1151; Friemel v. Coker (Tex.Civ.App.) 218 S.W. 1105; Dashiell v. Johnson, 99 Tex. 546,91 S.W. 1085; Farm Home Savings Loan Ass'n v. Muhl (Tex.Civ.App.) 37 S.W.2d 316; Himes v. Himes (Tex.Civ.App.) 55 S.W.2d 181; Boerner v. Cicero Smith Lumber Co. (Tex.Civ.App.) 293 S.W. 632; Stefka v. Lawrence (Tex.Civ.App.) 288 S.W. 1092; Rodriguez v. Saegert (Tex.Civ.App.) 74 S.W.2d 171; Commercial State Bank v. Blackwell (Tex.Civ.App.) 61 S.W.2d 563; Moore v. Moore (Tex.Civ.App.) 259 S.W. 322; Atchison T. S. F. Ry. Co. v. Lucas (Tex.Civ.App.)148 S.W. 1149; Houston National Bank v. Adams (Tex.Civ.App.)295 S.W. 198; Brown v. Griffin, 71 Tex. 654, 9 S.W. 546; Turner v. Grobe, 24 Tex. Civ. App. 554, 59 S.W. 583; McCormick v. Kampmann (Tex.Civ.App.) 109 S.W. 492; Morgan v. Bement, 24 Tex. Civ. App. 564,59 S.W. 907; Burleson v. Tinnin (Tex.Civ.App.) 100 S.W. 350; Heierman v. Robinson, 26 Tex. Civ. App. 491, 63 S.W. 657, 658; Wyatt v. Moore (Tex.Civ.App.) 152 S.W. 1133; Thomasson v. Davis (Tex.Civ.App.)74 S.W.2d 557; Dubinski Electric Works v. Lang Electric Co. (Tex.Civ.App.) 111 S.W. 169; Ft. Worth D.C. Ry. Co. v. Decatur Cotton Seed Co. (Tex.Civ.App.) 193 S.W. 392; Queen v. Turman (Tex.Civ.App.)241 S.W. 786; Dendinger v. Martin (Tex.Civ.App.) 221 S.W. 1095; Jarecki Mfg. Co. v. Hinds (Tex.Civ.App.) 295 S.W. 274; Daugherty v. Wiles (Tex.Com.App.) 207 S.W. 900; Walker v. Dawley (Tex.Civ.App.)4 S.W.2d 159; Wachholder v. Paull (Tex.Civ.App.) 267 S.W. 325; Chicago R. I. G. Ry. Co. v. Hammond (Tex.Civ.App.) 286 S.W. 483.

Appellant insists that the trial court erred in refusing to grant his motion for new trial, for the reason that there is not sufficient evidence to support the judgment because of the failure of appellee to prove that appellant took possession of the wheat without the permission of the mill company. Appellant testified that he, on or about May 2, 1934, took 1,018 bushels of hard wheat in the elevators of Bosque Mill Elevator Company under the belief that same belonged to him, and immediately thereafter mixed it with soft wheat purchased by him from local farmers and manufactured the mixed wheats into flour and other wheat products and sold same and appropriated the proceeds to his use. He is bound by this testimony, Southern Surety Company v. Inabnit (Tex.Civ.App.) 1 S.W.2d 412, and, if he was not the owner of this wheat, then his appropriation thereof was wrongful ab initio and conversion thereof was complete when he took possession and asserted ownership of and exercised dominion over it. The jury found that he was not the owner of this wheat, and such finding has substantial support in the evidence. The fact that he, in good faith, took and appropriated the wheat, under the belief that it was his wheat, does not relieve him of liability for its then market value. His testimony shows a taking without permission. Crawford v. Thomason, 53 Tex. Civ. App. 561, 117 S.W. 181; Lawson v. Townsend (Tex.Civ.App.) 25 S.W.2d 170; Stidham v. Lewis (Tex.Civ.App.) 23 S.W.2d 851; Payne v. Lindsley, 59 Tex. Civ. App. 545,126 S.W. 329; Williams v. Deen, 5 Tex. Civ. App. 575, 24 S.W. 536; Henderson v. Beggs (Tex.Civ.App.) 207 S.W. 565; Neyland v. Brammer (Tex.Civ.App.) 73 S.W.2d 884; Runnels v. La Fitte (Tex.Civ.App.)61 S.W.2d 585; Standard Finance Corp. v. Moore (Tex.Civ.App.) 69 S.W.2d 458; Cotten v. Heimbecher (Tex.Civ.App.) 48 S.W.2d 402; Forrest v. Burns (Tex.Civ.App.) 57 S.W.2d 1111; Pittman v. Ft. Worth Warehouse Storage Co. (Tex.Civ.App.) 258 S.W. 1105.

Appellant testified that R. O. Bass and his wife knew that he (appellant) was getting the hard wheat purchased from Clement Grain Company. The trial court, on motion of appellee, struck this testimony. This ruling is challenged. The proferred testimony was relevant on the issues of ownership and conversion of the 1,018 bushels of hard wheat and was therefore admissible, yet, the court permitted appellant to testify fully as to his conversations and transactions with R. O. Bass and as to the facts and circumstances with reference to the purchase and acquisition of and the means and manner of payment for the hard wheat and as to the circumstances surrounding his taking of it and his reasons therefor. He did not testify or offer to testify that he took the wheat with the permission or consent of either Mr. or Mrs. Bass, and for such reason his proferred testimony that they (Mr. and Mrs. Bass, president and treasurer, respectively) knew that he was getting the wheat has little, if any, probative force on the question of conversion; and it does not appear from an examination of the entire record that the exclusion of this testimony (1) could have or did affect the finding of the jury; (2) cause rendition of improper judgment; (3) probably prevented proper presentation of appellant's case; or (4) was prejudicial. Schroeder v. Rosenbaum (Tex.Civ.App.) 21 S.W.2d 694; Plunkett v. Simmons (Tex.Civ.App.) 63 S.W.2d 313; Luby v. Hoffman (Tex.Civ.App.) 54 S.W.2d 180; Doss v. Southwestern Transportation Co. (Tex.Civ.App.) 89 S.W.2d 1092; Stuart Motor Co. v. Burroughs Adding Machine Co. (Tex.Civ.App.) 47 S.W.2d 637; Bute v. Duson (Tex.Civ.App.) 95 S.W.2d 493; Carlton v. Adams (Tex.Civ.App.) 54 S.W.2d 1073; Rose v. O'Keefe (Tex.Com.App.) 39 S.W.2d 877; Evans v. Galbraith-Foxworth Lumber Co. (Tex.Civ.App.) 31 S.W.2d 496; Benton v. Benton (Tex.Civ.App.) 45 S.W.2d 260; Sloan v. Sloan (Tex.Civ.App.)32 S.W.2d 513.

The other assignments presented have been carefully examined and found to be without merit.

Appellee, having filed a remittitur of $586.50, the excess ascertained to exist in the verdict of the jury and judgment of the court below, the judgment therefore is reformed by reducing the amount of recovery by $586.50, and, as reformed, judgment is here rendered in favor of appellee against appellant for the sum of $763.50, with 6 per cent. interest from the 2d day of May, 1934, but judgment is here rendered in favor of appellant against appellee for all costs incurred in this court and in the appeal of this cause. A. Harris Co. v. Caldwell (Tex.Civ.App.)276 S.W. 298.

Appellees' motion for rehearing is granted, and the judgment heretofore rendered, reversing and remanding this cause, is set aside, and the judgment of the trial court, as herein reformed, is affirmed.