Brinkman v. Rick

• Decision Date: 13 June 1929
• Docket Number: (No. 10419.)
• Citation: 19 S.W.2d 808
• Parties: BRINKMAN et al. v. RICK et al.
• Court: Texas Court of Appeals

19 S.W.2d 808

BRINKMAN et al. v. RICK et al.

(No. 10419.)

Court of Civil Appeals of Texas. Dallas.

June 13, 1929.

Rehearing Denied July 13, 1929.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Proceeding to try the right of property to certain stock certificates as between Mrs. Pauline W. Brinkman and husband and A. C. Rick and another. From an adverse judgment, the former appeal. Reversed and rendered.

Dabney, Goggans & Ritchie, of Dallas, for appellants.

Lee Richardson, W. H. Flippen, and John T. Gano, all of Dallas, for appellees.

LOONEY, J.

A. C. Rick and A. E. Stewart, creditors of J. George Brinkman, brought suit against him, in separate actions, and caused writs of attachment to be levied upon, as the property of the defendant, certificate No. 29, representing 125 shares of stock in the Howell Company, a corporation, formerly Toole-Howell Furniture Company. Mrs. Pauline W. Brinkman, wife of J. George Brinkman, claimed the property, and in due time and form, joined pro forma by her husband, filed claimant's oath and bond for the trial of her right to the property. Issues were formed under the direction of the court, and, on trial in June, 1923, the court reached the conclusion that the general demurrer urged by plaintiffs to the answer of defendants, theretofore overruled, should have been sustained, thereupon halted the case, struck out all evidence offered by defendants, sustained the general demurrer to their answer, and instructed a verdict for plaintiffs. Defendants appealed to this court, and, pending appeal, the case was transferred by the Supreme Court to the Court of Civil Appeals at Beaumont, and by the latter court was reversed and remanded, and application by plaintiffs for writ of error was dismissed by the Supreme Court for want of jurisdiction. See Brinkman v. Rick, 285 S. W. 885. The second trial was to a jury, and resulted in judgment for plaintiffs, foreclosing their liens upon the property levied upon, and denying the claim of Mrs. Brinkman, from which this appeal is prosecuted.

The facts from which this lawsuit arose are substantially these: On June 1, 1919, Matt M. Toole was indebted to J. George Brinkman in the sum of $17,500, evidenced by note due January 1, 1923, and secured by a pledge of five stock certificates aggregating 125 shares of the capital stock of Toole-Howell Furniture Company, a corporation of Dallas, Tex. On March 30, 1921, Brinkman, being indebted to his wife something over $17,500, assumed authority to act under the collateral agreement with Toole, sold the 125 shares of stock to his wife in settlement of $17,500 of this indebtedness, and thereupon transferred and delivered to her the stock certificates. It is pertinent to state here, that J. George Brinkman, in selling this stock, acted in excess of his authority under the collateral agreement; therefore the sale was unauthorized and voidable, at the instance of Toole. After purchasing the stock, Mrs. Brinkman delivered the certificates to Mr. Townley Culbertson, vice president of Commerce Trust Company of Kansas City, Mo., where these parties resided, with instructions to send them to Dallas and have the stock reissued in her name. Culbertson immediately mailed the certificates to a Mr. Peterson, manager of the Commerce Farm Credit Company, of Dallas, a subsidiary and correspondent of the Commerce Trust Company, with instructions to present the certificates to the Howell Company and have one certificate issued for all the stock in the name of Pauline W. Brinkman. The Howell Company refused to transfer the stock or to reissue at that time, because Toole, pledgor, had made objections to the sale by Brinkman to his wife, but even before, on August 17, 1920, had notified Howell Company, in writing, not to transfer the stock without his written consent. However, on May 9, 1921, Brinkman and Toole settled their differences, Brinkman paid Toole $1,050 in cash, and surrendered, as paid, his note for $17,500; thereupon Toole indorsed on the written notice theretofore served on Howell Company the following: "I hereby release the Howell Company from the above notice and hereby authorize said company to transfer my stock, comprising 125 shares, to J. George Brinkman."

After this settlement, Peterson, acting for Culbertson, again presented the stock certificates to the Howell Company for transfer. It seems that in a letter dated May 7, 1921, Culbertson requested Peterson to have the company reissue the stock in one certificate in the name of J. George Brinkman, and, as requested, Howell Company, on May 11, 1921, issued the certificate in suit, being No. 29, for 125 shares. The instruction to Peterson to have the stock reissued in the name of Brinkman was a mistake on the part of Culbertson. Mrs. Brinkman had made no such request; in fact, Culbertson did not intend to have the stock thus reissued, as it was in violation of Mrs. Brinkman's instructions. In this status, on May 11, 1921, plaintiffs caused the writs of attachment to be levied; the officer making the levy took the certificate from the possession of Peterson, who, under Culbertson, was holding for Mrs. Brinkman—in other words, the stock, when seized and taken possession of by the officer, was in the constructive possession of Mrs. Brinkman.

The jury found that the settlement between Brinkman and Toole May 9, 1921, did not constitute a ratification of the voidable sale by Brinkman to his wife on March 30, 1921, but was a direct sale of the stock by Toole to Brinkman.

In regard to this transaction, the Beaumont court used the following language: "It is our opinion that this action on the part of Toole was a clear ratification of the invalid sale of his stock to Mrs. Brinkman, and no right in the stock being in either of the appellees at the time of such ratification by Toole, they cannot question his action in that connection, but as between them and Mrs. Brinkman, the sale to her by her husband, though originally invalid, was rendered valid and binding by Toole's ratification thereof."

The general rule in this state, though not inflexible, is that a former decision becomes the law of the case, for it is said, "If the rule of stare decisis is of any value, it should be adhered to, when the precise question is again presented in the same court, between the same parties, and on the same state of facts." See Burns v. Ledbetter, 56 Tex. 282. So, under this rule, the invalid sale by Brinkman to his wife was ratified by Toole; hence at the time the writs of attachment were levied, she had title to and was in possession of the stock. But, as we view the case, it is immaterial whether the settlement between Toole and Brinkman constituted a ratification of the invalid sale, or was in effect a direct sale of the stock by Toole to Brinkman, for in either event the result is the same. Brinkman assumed the right to sell and did sell and deliver the stock to his wife, at a fair price and for a valuable consideration. It does not appear that she knew or was in possession of any facts that impeached his right or power to sell. She was acting under the advice of Mr. Townley Culbertson, who advised that it was all right, that she could purchase the stock in settlement of the debt against her husband. Under these circumstances, the law will imply, as against Brinkman, a warranty of title to the stock, notwithstanding his want of authority to sell.

After stating the rule as it formerly existed at common law, to the effect that no warranty of title would be implied on a sale of chattels, the present rule on the subject is announced in 24 R. C. L. 182, § 454, as follows: "This view was, however, at a later date repudiated in England and it is the general rule, as established by the later authorities, both in England and in this country, in harmony with the rule of the civil law, that the law will ordinarily imply a warranty of title when chattels in the possession of the seller are sold for a fair price."

That this is the prevailing rule in this state, see Mathews v. Allen, 6 Tex. 330; McKinney v. Fort, 10 Tex. 220-232; Granberry v. Hawpe, 30 Tex. 409-411; Pitt v. Elser, 7 Tex. Civ. App. 47, 32 S. W. 146, 147; Gurley v. Dickason, 19 Tex. Civ. App. 203, 46 S. W. 53-55.

If, therefore, we accept the theory presented by the finding of the jury, to the effect that the stock was in fact sold to Brinkman by Toole on May 9, 1921, the title thus acquired by him passed immediately, by estoppel, to Mrs. Brinkman, under the implied warranty of title. The rule that title to personalty subsequently acquired by the vendor, even under a sale without an express covenant of warranty of title, inures by estoppel to the benefit of the buyer, prevails generally. See 21 C. J. 1079, § 44; Gottfried v. Miller, 104 U. S. 521, 26 L. Ed. 851-854; Vulcan Detinning Co. v. American Can Co., 67 N. J. Eq. 243, 58 A. 290; Dorsey v. Gassaway, 2 Har. & J. (Md.) 402, 3 Am. Dec. 557-562; Curran v. Burdsall (D. C.) 20 F. 835; Clark v. Slaughter, 34 Miss. 65; Gookin v. Graham, (Tenn.) 5 Humph. 480-484. The courts of our state hold uniformly that one who assumes ownership or authority to sell property is estopped to afterwards assert title adverse to that conveyed. See Corzine v. Williams, 85 Tex. 499, 22 S. W. 399; Cope v. Blount, 99 Tex. 431, 90 S. W. 868; Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74; Crump v. Sanders (Tex. Civ. App.) 173 S. W. 559; Wilson v. Beck (Tex. Civ. App.) 286 S. W. 315-319, and authorities cited.

It is immaterial, therefore, which view we take—that is, whether Toole ratified the voidable sale of the stock by Brinkman to his wife (expressed by the Beaumont court), or whether he sold the stock to Brinkman (as found by the jury)—for either leads to the same conclusion; that is, that title to the stock was vested in Mrs. Brinkman prior to and at the time the writs of attachment were levied.

But, if ...