Gibson v. Hicks

Concurs in the holding that the judgment should be reversed and the cause remanded, but does not concur in the reasons assigned.

On Rehearing. Appellee contends that we erred in the original opinion in holding that the findings of the jury were not upon the issues presented by appellee's pleading, that appellant's motion for judgment should have been granted by the trial court, and that the signed receipt did not support appellee's allegation that there was an agreed value upon the automobiles. He also argues that the court properly submitted the issues presented in the pleadings of both parties.

With this statement we cannot agree. Appellee himself sought a recovery on the theory, and the theory only, that the automobiles had been accepted at an agreed value of $875. Appellant denied such an agreement, and defended the suit on the theory that the settlement constituted a satisfaction of Mrs. Hicks' claim against appellant for usury.

While it is true that in the allegations of appellant as to the agreement there appears an allegation that the cars were not worth an amount exceeding $500, yet this is made in connection with and incidental to the pleading of the settlement, and does not, in our opinion, put in issue the question of market value of the cars.

We are further of the opinion that, in a suit to recover the statutory penalty for usury (Rev.St. 1925, art. 5073), the action being quasi criminal, the plaintiff must allege and prove such facts as will bring him strictly within the statute. Whitlow v. Culwell, 16 Tex. Civ. App. 266,40 S.W. 642; Rosetti v. Lozano, 96 Tex. 57, 70 S.W. 204, 205.

If we be correct in this, then appellant, before he could recover, would have the burden of proving that the cars had been accepted at an agreed value of $875, in accordance with his allegations.

In rendering judgment the trial court's duty was to render only such judgment as found support in the pleadings, regardless of what the facts might show.

We take it, from the fact that the trial court submitted the issues on market value that he did not consider the evidence sufficient to support a recovery on the theory of an agreed value, and therefore the judgment rendered was based upon the jury's findings as to the market value. There being no such issue raised by the pleadings, it follows that the judgment was erroneously rendered.

This error is apparent from the record, we think.

In reference to the sufficiency of the receipt to show that the cars were accepted at an agreed value, appellee presents the following argument: "The receipt signed by Gibson was signed at the request of an interested party, appellee herein, who was the owner of one of the cars. The receipt was part of the res gestae and Henry Hicks, the owner of one of the cars and the son of Mrs. Hicks, could have, if he wanted to, refused to deliver the cars and certainly would have had the right to know at what price the cars, or his car, was being received by the appellant. It was perfectly natural and right. The appellee, a married man, in this case was the son of Mrs. Hicks and the owner of one of the cars. He might expect from his mother, reimbursement for the settlement of her debt by giving up a portion of his property and he not only was within his rights but acted sensibly in having Gibson execute the receipt for the cars at the time that they were delivered. The question that we are discussing seems so clear that we cannot understand how the Chief Justice can see that this, the appellee's theory of the case, finds no support in the evidence."

Upon this argument we are asked to reverse the former judgment and affirm the judgment of the trial court, in spite of the fact that the car which appellee claims belonged to him was in his mother's name, was included in the mortgage to Gibson, a bill of sale to which had, with his consent, been executed to Gibson by Mr. McBroom before the receipt was executed by Gibson.

The many reasons assigned by counsel, why appellee was entitled to and so sensibly demanded the receipt in question, are not borne out by the evidence of his own client, who admitted, on cross-examination, that the reason he demanded the receipt and wrote into it that the cars were being accepted at a value of $875, was that it might be used by him as a basis for this suit.

How can it be said that the execution of the receipt by Gibson and its acceptance by appellee constituted an agreement between appellant and Mrs. Hicks that the cars were accepted at an agreed value?

Mrs. Hicks, not appellee, owed Gibson the money, and the dispute arose between them, and the settlement was made by their representatives. There is nothing in this record to show that either of them was representing him. The only part he had in the matter was that Mrs. Hicks had instructed McBroom that one of the cars should not be disposed of without his consent, which he gave to McBroom before the receipt was executed. Appellee was not representing his mother in the settlement, and, after he had given his permission to McBroom to dispose of the automobile, was a total stranger to the transaction, and, McBroom having executed to Gibson a bill of sale to the two cars under his authority, and there having been no receipt called for in the settlement, Gibson was not called upon to execute any receipt therefor, and certainly one executed at the request of appellee, a stranger to the agreement, would not be sufficient to show that, when Gibson agreed to accept the cars in the settlement, he agreed that such acceptance was based upon an agreed value of $875.

It is, we think, well settled that, when a case has been tried upon an erroneous theory, the case should be reversed and remanded. 3 Tex.Jur. § 857; Keevil v. Ponsford (Tex.Civ.App.) 173 S.W. 518; Missouri, K. T. R. Co. v. Langford (Tex.Civ.App.) 201 S.W. 1087; City Nat. Bank v. Eastland County (Tex.Civ.App.) 12 S.W.2d 662; Story v. Conn (Tex.Civ.App.) 27 S.W.2d 909.

There can be no question but that the theories of the parties in the court below were not the theories upon which this case should have been tried, under the facts; therefore our judgment reversing and remanding the case was a proper one.

The motion for rehearing is therefore overruled.