Carver Bros. v. Merrett

• Decision Date: 31 January 1916
• Docket Number: (No. 1556.)
• Citation: 184 S.W. 741
• Parties: CARVER BROS. v. MERRETT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

184 S.W. 741

CARVER BROS. v. MERRETT et al.^*

(No. 1556.)

Court of Civil Appeals of Texas. Texarkana.

January 31, 1916.

Rehearing Denied February 16, 1916.

Appeal from District Court, Titus County; J. A. Ward, Judge.

Suit by John Merrett against Carver Bros., a copartnership, and another. From a judgment for plaintiff, the named defendants appeal. Affirmed.

See, also, 155 S. W. 633, 174 S. W. 929.

The suit is by appellee, Merrett, seeking to recover the sum of $1,773.39 against appellants, a copartnership, and the Merchants' & Planters' National Bank. The petition alleged that Carver Bros. were during the fall of 1911 cotton merchants, with their residence and principal place of business in Collin county, Tex., and operating and buying and selling cotton throughout many counties in Texas, including Titus county; that on September 27, 1911, a contract was entered into between Carver Bros. and the bank by the terms of which the bank agreed to pay for cotton bought by them through their agent and representative, and Carver Bros. agreed and promised to refund to the bank any and all sums so advanced, together with 10 per cent. interest per annum, and the costs of yardage and weighing; that during that season the bank paid out $67,417.31, including interest, and that Carver Bros. had repaid $65,646.28, leaving a balance of $1,773.39 still due the bank; that the bank transferred and sold this account to plaintiff, and guaranteed its payment. A second count

of the petition alleges substantially that the bank held as collateral and as a pledge to secure the payment of the account of $1,773.39 44 bales of lint cotton, property of Carver Bros., and of the value of $45 per bale, which was represented by cotton tickets issued by Hammond & Culver and in the possession of the bank; that the agent of Carver Bros. came into possession of the cotton tickets and cotton while acting in the scope and apparent scope of his authority and in the course of his employment, to prepare shipping lists, make reports, and check the cotton, and after getting possession of the cotton tickets and cotton for the temporary purpose such agent and Carver Bros. failed and refused to return the same, and appropriated and converted the cotton and tickets; that this was done in Titus county; that the bank sold and transferred this claim for damages to plaintiff, and guaranteed its payment. The bank by its answer admitted liability as a guarantor of the account and the claim for damages, and prayed for judgment over and against Carver Bros. for the same judgment that might be rendered against it. Appellants, Carver Bros., first answered by plea of privilege to be sued in the county of their residence. A jury being demanded, the plea of privilege was submitted to the jury along with the merits of the case. Subject to the plea of privilege appellants answered that they were not liable for the 44 tickets nor indebted in the sum sued for; that they had received only 1,432 bales of cotton and cotton tickets from the bank; that the bank was not authorized to pay for any cotton except with the cotton tickets attached; that the bank was negligent in respect to the cotton tickets, causing damages to appellants to the amount sued for; and in offset. A jury rendered a verdict against appellants' plea of privilege and against appellants for damages.

The facts proved on the trial show that Carver Bros. reside at Farmersville, Collin county, Tex., and were during the years 1911 and 1912 engaged in buying and selling cotton. In September, 1911, Carver Bros. addressed the following letter to the cashier of the Merchants' & Planters' National Bank of Mt. Pleasant:

"Dear Sir: This will introduce to you Mr. J. W. Pierce, who will represent us in your city, and we hope he will be able to buy some cotton on the streets for us, and we would like for you to pay for cotton bought by him for us with tickets attached for us, and we will ship out and give you exchange on either Sulphur Springs or Pittsburg. We do not know whether it is your custom or not to figure the tickets on street cotton for the buyer. If you will do this, we will appreciate it, and it will also help Mr. Pierce. Any favors shown him will be greatly appreciated by us."

The bank agreed to this proposal, and entered into an agreement with Carver Bros. to the effect that they would pay for such cotton as J. W. Pierce would buy for the account of Carver Bros. when Pierce placed with or caused to be placed with the bank tickets issued by cotton weighers showing the weight of the cotton and the price to be paid therefor. It appears without dispute that these tickets were to remain with the bank as collateral security for the money advanced in paying for the cotton. Pierce then began buying cotton for the appellants, and during the season purchased a large number of bales, all of which seem to have been paid for by the bank. Pierce himself had no interest in the cotton. In buying the cotton his custom was to give to the seller a slip of paper or ticket on which was noted the weight, price paid, and the weigher's number. He also noted the letters "O. K." and signed his initials. These slips were presented to the bank by the seller, and the amount called for was paid and charged to Carver Bros. It was Pierce's duty at stated intervals to make reports to his employers of the amount and quality of cotton bought by him. He was also expected to ship out certain quantities and grades of cotton as directed by his employers. For the purpose of performing these duties he was given access to the tickets held by the bank. He used them in making up his invoices to be sent to his employers, and was also permitted to use them in making out shipping lists, and, for the purpose of obtaining the bales from the weigher, was allowed to withdraw the tickets corresponding to the cotton he desired to ship. When shipped he would deliver to the bank, in lieu of the tickets taken out, bills of lading. These were attached to drafts upon the purchasers; and in that way the bank was reimbursed for advances made. This manner of doing business continued until some time in December, when, for reasons not disclosed, Pierce quit the service of the appellants, and was succeeded by an agent named Walter. Walter, in behalf of the appellants, in connection with the officers of the bank, checked up the number of tickets the bank had on hand, and found that 44 of them were missing. The evidence indicated that Pierce had appropriated the tickets. Testimony was introduced by the bank showing that none of the employés who had access to the tickets had appropriated any of them. There was also testimony tending to show that the officers of the bank exercised proper care to safely keep the tickets, and that no person had an opportunity to appropriate them except Pierce. Pierce, it appears, received the benefit of 30 bales of the cotton, and Carver Bros. received no benefit therefrom except the sum of $400 paid by the insurance company. It appears that it was necessary, in the handling of Carver Bros.' cotton at Mt. Pleasant, that certain charges of yardage, weighing, and storing should be paid for, which was done by the bank at the instance and request of Carver Bros.' agent.

The evidence authorized the findings that Pierce obtained possession temporarily of the

cotton tickets and cotton held as collateral security by the bank, in furtherance of the service of Carver Bros., and within his authority of agency so to do, and then converted the same, and that the collaterals were held by the bank to secure a debt due by Carver Bros. in the sum of $1,773.39, and that the bank was not guilty of negligence in handling the tickets or cotton. The bank transferred its claim for damages against Carver Bros. to appellee, Merrett, who resided in Titus county, and in the transfer guaranteed the payment of the claim.

S. P. Pounders and J. M. Burford, both of Mt. Pleasant, for appellants. T. C. Hutchings, of Mt. Pleasant, and L. E. Keeney, of Texarkana, for appellee.

LEVY, J. (after stating the facts as above).

By the first, second, and third assignments of error, which may be here considered conjointly, the appellants urge that the legal effect attaching to the evidence respecting the ground of venue is to deny the legal right to appellee, Merrett, to bring suit against the appellants in Titus county, and that they were entitled to have the case transferred for trial to the district court of Collin county, the county of their residence. It is believed that the assignments must be overruled. Appellee, Merrett, sued the appellants in two counts: (1) Upon an account for money advanced and paid by the bank; and (2) for damages laid in conversion in Titus county of collateral security pledged to the bank to secure the payment of the account....