Cage Bros. v. Whiteman

• Decision Date: 26 June 1941
• Docket Number: No. 2315.,2315.
• Citation: 153 S.W.2d 727
• Parties: CAGE BROS. et al. v. WHITEMAN et al.
• Court: Texas Court of Appeals

153 S.W.2d 727

CAGE BROS. et al. v. WHITEMAN et al.

No. 2315.

Court of Civil Appeals of Texas. Waco.

June 26, 1941.

Rehearing Denied July 24, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Fifty-Fourth District, McLennan County; D. W. Bartlett, Judge.

Suit by Charles D. Whiteman against Cage Brothers and others for conversion of sand and gravel, wherein defendants filed a cross-action against T. F. Bush. From an adverse judgment, Tom C. Cage and J. F. Cage, individually and as copartners, and Cage Brothers, a copartnership composed of Tom C. Cage and J. F. Cage, appeal.

Affirmed.

Dan Moody and Herman Jones, both of Austin, for appellants.

Conway & Scharff and John Sheehy, all of Waco, for appellees.

RICE, Chief Justice.

Charles D. Whiteman, as plaintiff, brought this suit in the district court of McLennan county, Texas, against Cage Brothers, a co-partnership composed of Tom C. Cage and J. F. Cage, and Tom C. Cage and J. F. Cage, individually, Luther A. Turner, H. E. Williams, Acme Wire & Iron Works, a co-partnership composed of J. E. Ingram, R. W. Ingram and H. B. Ingram, and J. E. Ingram, R. W. Ingram and H. B. Ingram, individually, as defendants, seeking recovery in damages for conversion of sand and gravel alleged to be the property of plaintiff.

Upon the answers of the jury to the special issues submitted to it, the court rendered judgment against Cage Brothers, a co-partnership composed of Tom C. Cage and J. F. Cage, and against Tom C. Cage and J. F. Cage, individually, for the processed value (without deducting the cost of processing) of sand and gravel found to have been excavated and removed by them in the sum of $27,781.63; found that the evidence failed to establish a cause of action against the other defendants, and decreed that plaintiff take nothing as to them; from which judgment only Tom C. Cage and J. F. Cage, individually and as co-partners doing business under the name of Cage Brothers, and Cage Brothers, a co-partnership composed of Tom C. Cage and J. F. Cage, have appealed. Whiteman is herein referred to as plaintiff, and Cage Brothers, a co-partnership, as well as the individuals composing the firm, are referred to as defendants.

Plaintiff pleaded that he was the owner of the sand and gravel in place on and under a tract of 32 acres of land situated in McLennan county, Texas, by virtue of a written lease agreement made by him with T. F. Bush in March, 1937, by the terms of which the sand and gravel contained in said tract were conveyed to plaintiff, together with the right to erect buildings and machinery and make such improvements thereon as might be necessary for the mining, excavating, processing and removing of the sand and gravel therefrom. That upon the execution of the lease he went into possession, located and defined the sand and gravel deposits; moved large quantities of machinery and equipment on said land; erected a processing plant, and built the necessary roads to excavate, process and remove the sand and gravel. That during the latter part of 1937 or the early part of 1938, Cage Brothers and L. A. Turner secured a contract from the State of Texas to pave a portion of highway No. 7 leading west from Waco, and were in need of large quantities of sand and gravel; that they, through their agents, entered into negotiations with plaintiff in respect to purchasing from plaintiff the lease he had obtained from Bush; and also in respect to the purchase of sand and gravel obtained from the leased premises; that failing in such attempts, defendants conspired among themselves to secure the sand and gravel from said land without purchasing same from plaintiff and to cause Bush to eject plaintiff therefrom; and, in the execution of such conspiracy, entered into an agreement with Bush on January 3, 1938, whereby they secured the latter's consent and permission to remove the sand and gravel from said land, and caused Bush to eject plaintiff, together with his plant and equipment, from the leased premises. That at the time defendants entered into the agreement with Bush, and at the time they entered on the tract of land and converted the sand and gravel, plaintiff's lease was in full force and effect and plaintiff was in possession and was producing sand and gravel from the lease, which facts were known to the defendants. That after plaintiff was forcefully ejected from the land, the defendants, not acting in good faith, but with full knowledge of plaintiff's rights, entered into possession and wilfully converted plaintiff's sand and gravel of the value, in its processed state, of $35,239.55, for which plaintiff sought recovery, less, however, the royalty defendants paid to Bush, but without deduction of or credit for the cost of processing.

Defendants presented (and the court overruled) a plea in abatement to plaintiff's suit, on the ground that a personal action for conversion of sand and gravel can not be maintained by a party, who, at the time of the excavation of the sand and gravel, was out of possession of the premises, against a defendant who excavates and removes such sand and gravel from land while that defendant has peaceable, adverse and undisturbed possession of the land under a claim of title for the reason that such action requires the adjudication of title to real estate, which can not be done in a damage suit for conversion of personal property. Subject to the plea in abatement, the defendants answered: (1) That at the time defendants went into possession under their lease from Bush, dated January 3, 1938, plaintiff's lease had expired by reason of his failure to pay Bush the royalty therein provided for. (2) That plaintiff's lease with Bush was void and plaintiff was not entitled to establish his ownership of the sand and gravel deposits covered thereby, because, after he had acquired such lease from Bush, plaintiff entered into an illegal contract with Potts-Moore Gravel Company to secure leases on gravel deposits in the vicinity of that portion of highway 7 embraced in the contract of Cage Brothers with the State of Texas, for the purpose of controlling the supply of available gravel; that such contract with Potts-Moore Gravel Company was in restraint of trade, and rendered plaintiff's contract with Bush void. (3) That defendants went into possession of said tract of land when plaintiff was out of possession, and removed the sand and gravel therefrom in good faith, relying upon a lease executed by Bush and the latter's representation that he had good title to said land and a perfect right to lease the same. (4) Defendants, by cross-action against Bush, sought recovery over for any amount that was adjudged against them on the following grounds: (a) They were induced to commit the acts complained of by the representations of Bush, on which they relied, that he had the right to lease to them the sand and gravel deposits in question; (b) because if plaintiff's lease was not void, there was a breach of the express and implied covenants contained in Bush's lease to them; (c) Bush was a joint tort-feasor with defendant and the latter were entitled to contribution.

Bush and plaintiff each filed a plea in abatement to the defendants' cross-action against Bush, and both were sustained by the trial court. The trial court also sustained plaintiff's exception to that portion of defendants' answer setting up as a defense an alleged illegal contract between plaintiff and Potts-Moore Gravel Company.

The jury, in answer to special issues submitted, found, in effect, as follows (1) That plaintiff's lease was in full force and effect at the time plaintiff was ejected from the land and at the time defendants entered into their lease agreement with Bush; (2) that the defendants, in entering upon the Bush tract of land to remove sand and gravel therefrom, did not do so in good faith, but with knowledge of plaintiff's ownership of such sand and gravel; (3) that the defendants were not acting under a claim of title acquired in good faith in removing sand and gravel from the Bush tract; (4) that the reasonable market value of processed gravel at the time and place of its conversion was 70 cents per ton, that the reasonable market value of processed sand at the time and place of its conversion was 60 cents per ton, and that the reasonable cost of processing sand and gravel on the Bush tract was 40 cents per ton.

Defendants' assignments of error numbered from 1 to 10, inclusive, are each based upon the proposition of law that a personal action for conversion of sand and gravel cannot be maintained by a party, who, at the time of the excavation of the sand and gravel, was out of possession of the premises, against a defendant who had peaceable, adverse and undisturbed possession of the land under a claim of title at the time such sand and gravel is excavated, for the reason that such action requires the adjudication of title to real estate, which cannot be done in a damage suit for conversion of personal property.

Plaintiff's cause of action is one for conversion of personal property, that is, sand and gravel after the same had been severed from the land by defendants, in respect to which he alleged ownership and the right of possession at the time of the conversion. Plaintiff's claim of ownership is predicated upon a lease from Bush, dated March 16, 1937, which plaintiff contends vested in him the title to the sand and gravel in place. Defendants asserted ownership of the disputed sand and gravel by virtue of a lease to them from Bush, dated January 3, 1938, covering the same tract of land described in plaintiff's lease, and which vested in defendants the right to remove therefrom the sand and gravel. Plaintiff pleaded his lease; that the same was of record in the deed records of McLennan county and was in full force and effect when defendants accepted their lease from Bush and when they converted the sand and gravel; that defendants, at all times, had notice...