Butterworth v. France

• Citation: 66 S.W.2d 369
• Decision Date: 13 December 1933
• Docket Number: No. 4114.,4114.
• Parties: BUTTERWORTH et al. v. FRANCE.
• Court: Texas Court of Appeals

66 S.W.2d 369

BUTTERWORTH et al. v. FRANCE.

No. 4114.

Court of Civil Appeals of Texas. Amarillo.

December 13, 1933.

Appeal from Hockley County Court; J. P. Potts, Judge.

Suit by William Butterworth and others against D. A. France. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded.

Bean, Duggan & Evans, of Lubbock, for appellants.

Carl E. Ratliff, of Levelland, for appellee.

HALL, Chief Justice.

The appellant Butterworth, joined by B. F. Peek, F. R. Todd, and Frank Silliway, doing business as partners under the firm name of John Deere Plow Company, sued appellee France for conversion of six bales of cotton alleged to belong to T. W. Latimer and upon which appellants claimed a chattel mortgage lien. The cotton is alleged to be of the value of $163.92.

Defendant's answer contains the allegation that: "Through their authorized, O. L. Plyler, agent gave the said T. W. Latimer the mortgagor the right to hire said cotton gathered and harvested and sell the same and pay the expenses of gathering out of said cotton." It is further alleged that the mortgagor harvested the crop, sold it, and paid the expenses as he had been authorized to do by plaintiffs' agent Plyler. That therefore the plaintiffs were estopped from recovering from him the value of the cotton.

The case was submitted to a jury upon two special issues, in response to which they found that Plyler authorized Latimer to sell the six bales of cotton upon which plaintiffs had a mortgage for the purpose of defraying the necessary expenses of harvesting and marketing the crop; that at the time said agreement was made Plyler had authority to make it. From a judgment against Butterworth and his partners, this appeal is prosecuted.

The first proposition is that because the uncontradicted evidence showed that Plyler did not have authority to authorize the mortgagor to sell the cotton and because it was not shown that any other agent of appellants authorized such sale and that the cotton was purchased by France for $132.12, the court erred in overruling appellants' request for an instructed verdict for said sum.

This proposition must be sustained. It is true that Latimer testified that Plyler, the collector for the John Deere Plow Company, authorized him to sell the cotton and pay the expenses. Latimer testified that he relied upon the fact that Plyler was collector for the John Deere Plow Company and sold the cotton like Plyler told him to. Plyler testified: "I do not have the authority from John Deere Plow Company to release a mortgage where the debt is not paid, nor do I have authority to let a debtor of John Deere Plow Company sell property mortgaged to the Company, clear of debt. I have never been instructed that I could do that. * * * I did not have authority from anyone to tell D. A. France, Knott or Latimer to sell the cotton grown by Mr. Latimer and upon which the Company had a mortgage. No one has ever told me that I could let a mortgagor sell mortgaged property and account to the company for the proceeds."

He testified that W. T. Davis of Dallas is the only man in Texas who had authority from the plow company to release a mortgage or contract. There is no contention on the part of appellee that any one except Plyler ever gave Latimer permission to sell the cotton. The duty rested upon appellee France to prove by a preponderance of the evidence that Plyler was empowered by the company to authorize Latimer to sell the cotton free of the mortgage. There is no testimony that France relied upon any act or word of the John Deere Plow Company in making the purchase, or that he was misled in any way by the company and induced by it to purchase the cotton. The record shows that the mortgage was duly registered, and he said that he did not examine the records to see whether the cotton was mortgaged. Without some affirmative act or statement from the company upon which France could rely, as giving Plyler apparent authority to authorize Latimer to sell the cotton, the issue of estoppel is not in the case.

As said in 2 Tex. Jur. 462, 463: "The mere authority to collect debts or to collect and distribute money does not imply authority to release the debtor without payment."

As said in Lane et al. v. Sullivan (Tex. Civ. App.) 286 S. W. 541, 542: "Where, however, the party purporting to act as agent has no authority in fact, and the principal is sought to be held on the ground of apparent authority, the doctrine of estoppel is invoked. The rule in such cases in this state is correctly stated in Cleveland & Sons v. Houston Sporting Goods Store (Tex. Civ. App.) 166 S. W. 912, and quoted with approval in J. I. Case Threshing Machine Co. v. Morgan (Tex. Civ. App.) 195 S. W. 922, 924, as follows: `The doctrine of apparent authority to act as an agent is founded upon the law of estoppel, but in every case, in order to create an estoppel, the...