Beazley v. McEver, (No. 8601.)

• Citation: 238 S.W. 949
• Decision Date: 18 February 1922
• Docket Number: (No. 8601.)
• Parties: BEAZLEY et al. v. McEVER.
• Court: Court of Appeals of Texas

238 S.W. 949

BEAZLEY et al. v. McEVER.

(No. 8601.)

Court of Civil Appeals of Texas. Dallas.

February 18, 1922.

Rehearing Denied March 18, 1922.

Appeal from Dallas County Court; Dayton B. Steed, Judge.

Suit by J. N. McEver against E. M. Beazley and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

W. S. Pearson, of Denison, and Wolfe, Freeman & Wolfe, of Sherman, for appellants.

Wood, Jones & Wood, of Sherman, and J. W. Hassell, of Austin, for appellee.

HAMILTON, J.

Heretofore at the present term of court we disposed of this case without a written opinion. This action was followed by a most insistent motion for rehearing, accompanied by motion for written opinion. In the light of these motions, we have given further careful consideration to the case, and have arrived at the conclusion that we should express in a written opinion the conviction into which the final deliberations bestowed upon the propositions presented have ripened.

The controversy grew out of an exchange of automobiles between appellant McCoin and appellee. The former traded the latter a Hupmobile for a Ford car, and paid $30 difference. Bills of sale were simultaneously executed and delivered by each of the respective parties to the other. The Hupmobile was in a garage for repairs at the time. Appellant McCoin had owned the Hupmobile but a day or two when the trade was made. He told appellee this, and also told him that he knew nothing whatever about automobiles, and, particularly, was unacquainted with that which he was proposing to trade. In the same connection he told appellee that G. B. Vest, in whose garage it then was, knew about it, and could give appellee information as to its condition, etc. Appellee talked with Vest before the trade was made and, apparently upon the faith of Vest's statements, he made the trade. Subsequent to the trade, and on the same date, he was told that the Hupmobile was worthless, and that Vest's representations were false. He was to deliver the Ford to McCoin the morning following the day of the trade. After the trade he was to take it to his home a short distance from Denison to get some extra equipment and return with it the next morning, as above stated and make delivery to McCoin. Appellee had already received the $30 difference. After receiving information to the effect that Vest's representations were false appellee concluded to renounce the trade, retain the Ford car, and return to McCoin the $30. He tendered back the $30, which McCoin declined to accept, and put the Ford automobile in appellant Beazley's garage, receiving from Beazley at the time a promise that it would not be delivered to anybody else. McCoin came to the garage in Beazley's absence, and, displaying the bill of sale from McEver to one of Beazley's employés, induced such employe to deliver the Ford car to him. McCoin took the Ford car across the state line into Oklahoma, and refused to return it to Beazley upon the latter's demand.

Suit was filed by appellee to recover damages against the appellant Beazley for conversion of the Ford automobile, and, in the alternative, for Beazley's carelessly and negligently delivering such automobile to a person not entitled to it after appellee had stored it in appellant's garage, such person to whom it was negligently delivered having converted it.

Appellant Beazley answered the suit, admitting that the Ford automobile had been delivered to his garage by McEver, but denying appellee's right to possession, and pleading delivery of it on his part to appellant W. H. McCoin, alleged by him to be the true owner and rightful possessor under a bill of sale, and also by actual sale and delivery by appellee to McCoin. Beazley pleaded that, if he committed any wrong in making delivery, then appellee contributed to the act by delivering to McCoin the bill of sale used as an instrumentality by McCoin to obtain delivery of the automobile from Beazley's employé in the absence of Beazley, and that McEver was accordingly precluded from any right of recovery.

Appellant McCoin voluntarily made himself a party defendant to the suit by proper pleadings, joining issue with appellee. The case was submitted to a jury upon special issues, and, based upon the answers of the jury, judgment was entered for appellee by which he was awarded damages, interest, and costs of suit against the appellants, and in which appellant Beazley was awarded judgment in the same sum against appellant McCoin.

The cause was submitted to the jury upon nine questions, to which answers were made. The record contains evidence sufficient to sustain the answers rendered by the jury to all of the questions.

The eighth question submitted to the jury presents matter disclosed by the evidence which has a vital bearing upon the case, and the answer to which, sustained as it is by all the evidence, clearly renders the judgment of the court insupportable. Said question is as follows:

"If you believe that the witness G. B. Vest made to the plaintiff J. N. McEver any false representations as to the Hupmobile car, then you will answer this question: Did the defendant McCoin authorize Vest to make such misrepresentation?"

The answer was "No." This question presents no issue controverted in the evidence.

There is no evidence in the record which remotely tends to disclose that McCoin made any misrepresentations to McEver or participated in any act of deception. His mere referring McEver to Vest, as a former owner of the Hupmobile, and as a person acquainted with its qualities, is not sufficient alone to bind McCoin to Vest's misrepresentations.

The evidence of McEver himself contains absolutely nothing from which the conclusion may be drawn that McCoin, either directly or through any other person, authorized by him to speak for him, made any fraudulent representations to induce McEver to make the trade, and the only contention, of course, upon which McEver bases his right of possession and right to damages is that a fraud was perpetrated in the making of the contract which vitiated it and rendered it voidable at his instance. No other infirmity is suggested. Hence, if no deceit was practiced or participated in by McCoin, the title to the Ford automobile was in McCoin when Beazley's employé delivered it to him. And, in such circumstance, delivery to McCoin was delivery to the owner and person entitled to...