Hoskins v. Carpenter

• Decision Date: 09 January 1947
• Docket Number: No. 4484.,4484.
• Citation: 201 S.W.2d 606
• Parties: HOSKINS v. CARPENTER.
• Court: Texas Court of Appeals

201 S.W.2d 606

HOSKINS v. CARPENTER.

No. 4484.

Court of Civil Appeals of Texas. El Paso.

January 9, 1947.

Rehearing Denied January 30, 1947.

Appeal from District Court, El Paso County; D. E. Mulcahy, Judge.

Action by Betty Hoskins against A. B. Carpenter, individually and as executor of the estate of Alta J. Keohane Hoardley, deceased, to recover for services under an alleged contract, to recover an automobile and to recover certain jewelry and household furnishings. As to the jewelry and household furnishings, plaintiff took a nonsuit without prejudice. From the judgment, plaintiff appeals.

Affirmed.

Fred C. Knollenberg, Holvey Williams and Harold L. Sims, all of El Paso, for appellant.

Jones, Hardie, Grambling & Howell, of El Paso, for appellee.

PRICE, Chief Justice.

This is an appeal by Betty Hoskins, hereinafter designated as appellant, from the judgment of a District Court of El Paso County, 41st Judicial District, in a suit wherein she was plaintiff and A. B. Carpenter individually and as executor of the estate of Alta J. Keohane Hoardley, deceased, was defendant. The trial was to the court with a jury, submission by special issues, and judgment was rendered thereon in favor of appellant in the sum of $1,000.

Appellant alleged in substance that on or about September 18, 1943, she entered into a contract with Alta J. Keohane, then a single woman, in substance that appellant was to care for, nurse and act as companion of said Mrs. Keohane and to live with her if desired, and the said Mrs. Keohane was for such services to pay her the sum of $500 per month; that after the making of said contract Mrs. Keohane married a man by the name of Hoardley and thereafter she died on the 18th day of March, 1945. Appellant averred faithfully performing such contract from the date thereof to the date of Mrs. Hoardley's death. It was averred that nothing had been paid on said contract. Recovery was sought on such contract in the sum of $9,000. In the alternative she sued upon a quantum meruit for the recovery of a reasonable sum for her services. Appellant also sought to recover of appellee executor a certain automobile alleged to be of the value of $1,500, which said appellee was alleged to have converted, under the claim that same was the property of the estate of Mrs. Hoardley. Recovery was likewise sought for the value of two diamond rings alleged to be of the value of $1,500 which appellee was alleged to have converted, likewise the recovery of the value of certain household furnishings alleged to be worth $500. As to the jewelry and household furnishings, before the case was submitted to the jury appellant took a nonsuit without prejudice.

Appellee's answer consisted of a general denial, and as to the personal property he was alleged to have converted, averred he had taken possession thereof in his capacity of executor of the estate of Mrs. Hoardley, and in pursuance of an order of the probate court delivered same to B. M. Keohane, guardian of the estates of Bernard P. Keohane and Marianne Keohane, minor children of Mrs. Hoardley.

An issue was submitted to the jury as to whether or not the contract alleged was entered into between appellant and Mrs. Hoardley. This was answered in the negative. On the question of quantum meruit the verdict found in favor of appellant in the sum of $1,000, likewise it was found that on or about March 11, 1945, Mrs. Hoardley delivered to appellant the certificate of title and keys to the automobile in question; that she did not deliver same with the intent to vest title in appellant.

It is thought that to present and dispose of the points of error urged by appellant the substance only of the points need be stated. It is urged the refusal of the court to instruct a verdict in her favor in the sum of $9,000 on the grounds that the undisputed evidence established the contract and the performance thereof by appellant demands the reversal and rendition of the case, as does the failure of the court to set aside the finding as to the existence of express contract sued on; in the alternative that the verdict finding in favor of appellee on the issue of the existence of the contract was against the overwhelming preponderance of the evidence, and the court erred in refusing to grant a new trial. Error is also urged as to the admission and rejection of evidence and the court's overruling two certain special exceptions urged by appellant.

In substance the special exceptions assail appellee's answer as to the delivery of the personal property to the guardian of Mrs. Hoardley's minor children, in pursuance of the order of the County Court. No error is presented in the ruling as to the jewelry and furniture, as these were dismissed out of the suit. Her only claim to the automobile under the evidence was by virtue of an admitted gift by Mrs. Hoardley to her. As stated, the verdict established Mrs. Hoardley did deliver the keys and certificate of title of the automobile on March 11, 1945. On the reverse side of the certificate there is a purported assignment to appellant on a form we presume prescribed by the State Highway Commission. This purported assignment is signed "Alta J. Keohane" but is not sworn to by her. Presented is the question of whether the delivery of the keys and the unsworn assignment vested title to and the right of possession of the automobile in appellant. This transaction being a gift, appellant is not entitled to enforce same if it was executory in any particular. 21 Tex. Jur. p. 30, par. 10. See also p. 34, par. 115.

The attempted transfer of this automobile was a "subsequent sale" of the automobile in question, within the meaning of Section 8, Certificate of Title Act, Vernon's Annotated Penal Code, Article 1436— 1. Section 33 of the above-cited Article of the Penal Code provides in substance that no title passes unless the certificate is transferred before a Notary Public. This transfer was not before a Notary Public, hence it is thought elementary that title to the automobile did not pass. Mrs. Hoardley being under no legal obligation to transfer the title, appellant acquired no rights in the vehicle. It was an unexecuted gift. This is true even though by the delivery of the keys and certificate Mrs. Hoardley had intended to convey the title to appellant. The verdict, however, was that she did not so intend.

As a matter of law the evidence amounted to proof that appellant had no interest in the automobile. This being true, if it was error for the court to overrule appellant's special exception, it was harmless error. Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822. Likewise it is thought there is no merit in the complaint as to admission in evidence of the orders of the probate court relative to the delivery of the car and personal property to the guardian of the minors.

The verdict and judgment thereon relative to the alleged express contract is assailed on the ground that the court erred in refusing to instruct the verdict in favor of appellant; likewise erred in refusing to sustain her motion to disregard the finding of the jury and enter judgment in her favor non obstante veredicto. In the alternative it is alleged that the portion of the verdict as to the express contract was against the great preponderance of evidence.

It is elementary that the burden of proof as to such contract was upon the appellant. Appellant relies largely upon admissions on the part of Mrs. Hoardley, or more correctly perhaps, her declaration against interest, to establish the express contract. Mrs. Plyler and Mrs. Johnson each testified that Mrs. Hoardley had on several occasions told...