Weathered v. Meek ( 1923 )

GALLAGHER, C. J.

Chas. A. Weathered, Jack McLane, and A. L. Mitchell, partners under the firm name of Chas. A. Weathered & Co., appellants herein, brought this suit againát G. A. Meek, A. G. Porter, Central Texas Battery Company, a corporation, L. C. Jemison, and L. H. Dotson, appellees herein, in the county court.

The pleadings are voluminous. An abridged statement of the substance only of the same is here made. Appellants sued appel-lees Meek and Porter on 10 promissory notes for the sum of $25 each, and for foreclosure of a mortgage given by them to secure said notes on one Ford truck. Appellants alleged that the said battery company was claiming a lien on said truck or some interest therein, and that said Jemison and Dotson were also claiming some interest therein.

Appellees Meek and Porter answered that said Meek purchased the mortgaged truck from-appellant Weathered for the sum of $750; that he paid $25 cash therefor and, with said Porter as surety, executed, and delivered to said Weathered $725 in notes, secured by chattel mortgage on the truck; that they improved the truck by adding accessories and equipment, intending to use the same; that they concluded not to use the same, and so advised said Weathered, and advised him that they would be unable to pay for the same and offered to surrender the same in satisfaction and discharge of said debt and lien;, that Weathered accepted such offer, took charge of said truck, and disposed of the same; that the same constituted accord and satisfaction and extinguished the debt and lien sued on. They further pleaded in the alternative that Weathered seized said truck and converted the same to his own use, and that it was of the reasonable value of $765 at the time of such conversion.

Appellee Central Texas Battery Company answered that prior to the transactions involved in this suit it was the owner of said truck; that it sold the same to said Chas. A. Weathered for $600, of which $300 was paid by the delivery to it of a diamond ring; that for the remaining $300 Weathered agreed to execute and deliver to it his promissory note, payable in monthly installments of $25 each, and to secure the same by chattel mortgage on said truck; that Weathered took possession. of said truck and sold the same to Meek and Porter, but failed to execute said notes or mortgage; that thereafter Weathered returned the truck to it and requested it to accept the same in full satisfaction of said purchase money remaining unpaid, and that it accepted the return of said truck to it in satisfaction of such indebtedness; that Weatheredi haying taken the mortgage on said truck from Meek and Porter, represented and agreed in connection with such return of the truck to them that .said mortgage was extinguished and that’ there was no mortgage thereon at that time; that it accepted the return ot the truck relying on such representation and agreement. The battery company further alleged that it retained the title to the said truck until the terms of sale to Weathered were fully complied with; that Weathered never did comply with his agreement to execute and deliver his notes and mortgage on the truck for the remainder of the purchase price and that he never intended to comply therewith, but made such promise and agreement fraudulently to secure possession of the truck; that on such account Weathered never had any title in the truck, and it never parted with its title thereto; that while in possession of said truck Weathered attempted to sell the same to Meek and Porter and secured from them certain notes and a mortgage thereon; that he tried to force it to accept a part of such notes in lieu of his own note and mortgage for the remainder of the purchase money; that it declined to accept such notes of Meek and Porter and demanded a rescission of its sale to Weathered, to which demand Weathered acceded and upon which he returned the truck to it in satisfaction of the purchase money remaining unpaid; that while out of its possession said truck, by reason of declining prices and use and abuse thereof, had greatly depreciated in value and was not worth more than $400 when returned to it. It further'pleaded that Weathered took the truck back from Meek and Porter in satisfaction of the notes sued on and in cancellation of the mortgage securing same, and that such mortgage was therefore of no force or effect and could not be foreclosed in this suit.

Appellees Jemison and Dotson answered that they purchased said truck from the battery company in good faith, without notice of the claim of appellants, and that the battery company warranted the title thereto. ' They prayed for judgment over on such warranty against the battery company in the event of any recovery against them.

Appellants replied to the answers of the several appellees by supplemental petition, and alleged that they first approached the battery company and advised it that they had a purchaser for a truck;. that the battery company exhibited the truck involved in this suit, asked $600 for the same, and agreed that appellants might sell the same and retain all over that sum as their commission; that in pursuance of such agreement, appellant sold said truck to Meek and Porter for $750; that the battery company required $300 cash, but accepted in lieu of said amount a diamond ring furnished by appellants; that the battery company knew that said truck was sold to Sleek and Porter for $750, and that only $25 was paid in cash by them, and that they had executed their notes for the remaining $725, and that appellants were to retain all but $300 of said notes as commission and in return for said ring; that the $300 of such purchase-money notes, secured by a mortgage on the truck, were delivered to the battery company and accepted by it; that they were acting only as agents for said battery company in said transaction and that the battery company knew all the facts connected therewith and with such knowledge acquiesced therein. Appellants further alleged that Meek and Porter became dissatisfied with said truck and returned the same and asked appellants to sell the same for them; that appellants advised the battery company of said fact, and it consented thereto and urged appellants to sell the truck; that the battery company became impatient at the delay and took possession of said truck for the purpose of selling the same; that it was agreed between appellants and the battery company that whichever sold the truck should sell it for enough to pay all the notes given therefor, and that appellant’s notes, as well as the notes belonging to the battery company, were to be discharged out of the proceeds of such sale; that the battery company shortly thereafter sold the truck to one Hill, who in turn sold it to appellees Jemison and Dotson; that the battery company received the proceeds and appropriated the same to its own use, and that appellants did not know the amount received by the battery company; that the truck when taken by the battery company was in better condition and worth more than when said company parted with the same. Appellants prayed for an accounting of the proceeds of said sale and for title and possession of the said diamond ring, or judgment for its value.

The case was tried before a jury. At the close of the evidence the court instructed a verdict for appellees and entered judgment in favor of appellees on the verdict returned by the jury in response to such instruction.

Appellants on the trial introduced in evidence the notes and mortgage sued on. The notes were dated July 21, 1920, and matured one each month thereafter. The mortgage bore the same date and was filed in the oifice of the comity clerk and duly registered on the 28th day of July thereafter. It contained a provision authorizing appellants in certain contingencies, among which was a failure to pay each note as it matured, to enter upon any premises where said truck might be found and remove and sell the same, either at public or private sale, and pay out of the proceeds of such sale all expenses attending the same and apply the remainder of such proceeds to the satisfaction of said indebtedness.

Appellant’s testimony showed that Meek and Porter executed $425 in notes direct to them and secured the notes sued on by the mortgage introduced in evidence. Their testimony further showed that Meek and Porter executed a note or notes for the sum of $300 direct to the Central Texas Battery Company and secured the same by a separate mortgage on the truck. Neither such note or notes nor such mortgage were introduced in evidence. According to appellant’s evidence, such note or notes and mortgage were delivered to the battery company.

Meek ánd Porter failed to pay the first note and informed appellants that they could not or would not pay for the truck, and requested appellants to take it back in the satisfaction of the debt. This appellants declined to do and declared their purpose to require full payment of such indebtedness. Later appellants took possession of the truck for the purpose of attempting to sell the same. The exact date when this occurred is not shown, but it was after the maturity of the first note. Appellants did not succeed in effecting a sale and according to their evidence, on account of its being inconvenient to them to longer store the truck took it to the place of business of the battery company for storage and to afford the battery company, as well as themselves, an opportunity to find a purchaser therefor. Shortly after the truck was placed in the custody of the battery company, it applied to Meek and obtained from him a bill*of sale and application for transfer of the license. This bill of sale was direct to the battery company and was dated October 16, 1920. According to the evidence of the battery company, it sold the truck to Jemison and Dotson for $250 cash and received and kept the same as its own.

Appellants, in addition to the evidence above recited, introduced evidence tending to sustain the material allegations in their pleadings. Appellee Meek was called as a witness by appellants and on cross-examination testified in support of the allegations made in his answer. The manager of the battery company testified in support of the allegations made in its answer. All this evidence was in the main sharply in conflict with the evidence introduced by appellants. There was evidence raising an issue of fact as to the actual or market value of the truck at the time it was sold to Meek, at the time it was taken possession of by appellants, at the time it was placed in the possession of the batterj company, and at the time of the sale to Jem-ison and Dotson. Neither Jemison nor Dotson testified on the trial and neither of them offered any evidence, unless the evidence introduced by the battery company was offered also in their behalf; said appellees all being represented by the same counsel.

It appears that the appellants.sued in this case on only $250 of the notes executed to them by Meek and Porter. Nothing is shown with reference to the other notes aggregating $175 taken passable to them.

The appeal in this case being from an instructed verdict, the facts in evidence must be considered in the light most favorable to appellants, disregarding all conflicts. Charles v. El Paso Electric Ry. Co. (Tex. Com. App.) 254 S. W. 1094. If, when so considered, appellants were entitled, under any phase of the case made by the evidence, to any relief against any of the appellees, it was error for the court to instruct a verdict against them. Stooksbury v. Swan, 85 Tex. 563, 573, 22 S. W. 983; McGown v. Railway, 85 Tex. 289, 292, 293, 20 S. W. 80; Potter v. Wheat, 53 Tex. 401; Eberstadt v. State, 92 Tex. 94, 96, 98, 45 S. W. 1007; Phoenix Land Co. v. Exall (Tex. Civ. App.) 159 S. W. 474, 480 (writ refused); Bowman v. Texas Brewing Co., 17 Tex. Civ. App. 446, 43 S. W. 808; Daggett v. Webb, 30 Tex. Civ. App. 415, 70 S. W. 457.

We quote from Stooksbury v. Swan, supra, the following:

“In all cases the existence or nonexistence of the facts the evidence tends to prove, if there be conflict, as well as the existence or nonexistence of the fact to be inferred from other facts, must be left to the determination of the jury.”

The evidence in this case, in our opinion, raised an issue of fact as to whether Weathered purchased the truck and resold it to Meek and Porter, or whether he was acting for the battery company in making such sale; and also whether the battery company, knowing the facts, acquiesced in the payment of the remainder of the purchase price of the truck in ncjite or notes of Meek and Porter, payable to it and secured by separate mortgage on the. truck. We think the evidence also raised an, issue of fact whether appellants took back the truck in satisfaction of the debt and mortgage, or whether they took it back under an agreement, express or implied, between them and Meek that they should sell it and apply the proceeds in satisfaction of the unpaid purchase money, or whether they took possession of it under the rights conferred upon them by the terms of their mortgage. The evidence also, in our opinion, raised an issue of fact whether appellants turned the truck over to the battery company in settlement of the $300 due the battery company thereon, renouncing all claim on. their part thereto, or whether they placed the same in the possession of the battery company for convenience and to secure its aid in making an advantageous disposition thereof for the benefit of themselves as well as the battery company.

We do not mean to intimate that the issues of fact above recited are all the issues raised by the evidence. A verdict in favor of appellant’s contentions would have entitled them to relief appropriate to the facts found and would not have been without support in the evidence.

The court erred in giving a peremptory charge to find for appellees, for which error the judgment is reversed, and the cause remanded.