Cochran v. Wool Growers Central Storage Co.

• Citation: 166 S.W.2d 904
• Decision Date: 04 November 1942
• Docket Number: Motion No. 15617; No. 7908.
• Parties: COCHRAN v. WOOL GROWERS CENTRAL STORAGE CO.
• Court: Supreme Court of Texas

166 S.W.2d 904

COCHRAN v. WOOL GROWERS CENTRAL STORAGE CO.

Motion No. 15617; No. 7908.

Supreme Court of Texas.

November 4, 1942.

Rehearing Denied January 6, 1943.

Error to Court of Civil Appeals of Third Supreme Judicial District.

On motion for rehearing and permission to amend an application for writ of error.

Original opinion, 162 S.W.2d 941, dismissing writ of error to review a judgment of the Court of Civil Appeals, 153 S.W.2d 638, withdrawn, motion granted, and judgment of Court of Civil Appeals affirmed.

Hughes, Hardeman & Wilson, of San Angelo, for plaintiff in error.

Collins, Jackson, Snodgrass & Blanks, of San Angelo, for defendants in error.

CRITZ, Justice.

This is a case that could have been tried in the county court. At a former day we dismissed this writ of error for want of jurisdiction, on account of the fact that the application for the writ filed by James R. Cochran was insufficient to show a conflict of decision. Later Cochran filed a motion for rehearing and for permission to file an amended application for writ of error. Both these motions were overruled. Later we set aside our orders overruling the motions just mentioned. This cause is therefore now before us on motion for rehearing, and for permission to amend the application for writ of error. We will first consider the motion to amend. Such motion is accompanied by the tendered amended application. This is the proper practice.

An examination of this record will disclose that the original application for writ of error was filed in the Court of Civil Appeals on the 28th day of August, 1941, before the effective date of the present Texas Rules of Civil Procedure. The opinion and judgment of this Court dismissing the writ of error for want of jurisdiction was entered on May 20, 1942. The motion for rehearing and for permission to amend the application for writ of error was filed in this Court on June 4, 1942. The motion for rehearing was therefore filed within the fifteen-day period defined by Rule 515, Texas Rules of Civil Procedure. The motion to amend was filed after the effective date of such rules.

At this point we deem it expedient to discuss and consider Rules 481, 504, and 814, Texas Rules of Civil Procedure, as applied to this record.

An examination of Rule 481, supra, will disclose that it provides: "The application, * * * may be amended at any time when justice requires upon such reasonable terms as the court may prescribe. * * *" Rule 504, supra, provides: "The Supreme Court will not * * * dismiss a writ of error for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, * * *." Clearly these two rules authorize this Court to grant one who prosecutes a writ of error to this Court the right to amend his application, where it is defective either as to form or substance. Such being the case, an application which is defective, in that it fails to properly state grounds of jurisdiction under Section 1 of Article 1821, R.C.S., Vernon's Ann.Civ. St. Art. 1821, § 1, or Subdivision (b) of Rule 469, can be amended in this Court at any time when, in the opinion of the Court, justice so requires. Furthermore, we think the right to amend may be granted even though the original application for writ of error was filed before the effective date of Rules 481 and 504, supra. This holding in no way violates Rule 814, supra, defining the effective date of our present Texas Rules of Civil Procedure. We will therefore order that the amended application for writ of error be filed, and will now consider this case on such amended application. We think the amended application is sufficient to show jurisdiction in this Court on account of conflicts with the decisions we will later discuss.

The record before us shows: That the Storage Company, during all the time here involved, was a public warehouseman, doing business as such in San Angelo, Tom Green County, Texas; that as such warehouseman it had qualified to store wool on which Commodity Credit Corporation Loans could be made; that about July, 1939, Cochran, as owner, stored with the Storage Company the 2885 pounds of wool here involved; that such wool was stored for the purpose of obtaining a Commodity Credit Corporation Loan thereon; that after this wool was stored with the Storage Company it was duly appraised for a Commodity Credit Corporation Loan, and an appraisal certificate duly issued by the proper authority; that such certificate showed a loan value of $492.46; that after the issuance of the appraisal certificate the Storage Company negotiated for Cochran a Commodity Credit Corporation Loan with the Central National Bank of San Angelo, in the sum of $492.46, the appraised loan value of such wool; that on August 16 1939, Cochran executed and delivered to the bank his promissory note in the sum just named, due on or before ten months after date; that such note was secured by the warehouse receipts of the Storage Company representing this wool; that Cochran received the proceeds of such note; that on September 1, 1939, the Storage Company sold this wool for 22½¢ per pound, or for a total sum of $649.13; that such sum was the fair market value of this wool on the date of sale; that after selling such wool the Storage Company rendered Cochran an account of sale; that such account of sale showed the sale price of this wool; that such account of sale showed that the Storage Company had charged the $649.13 received for this wool with $16.23 commission and $495.48, the bank note above described and interest; that the Storage Company sent to Cochran its check for $137.42, representing the net amount coming to him, after deducting therefrom the charges above named; that on receiving the check and account of sale, Cochran at once went to the office of the Storage Company and protested the sale of his wool, and demanded that it be returned to him; that Cochran informed the Storage Company that he had not authorized the sale of his wool, and refused to accept the check sent him. Of course, the wool was sold, and could not be returned to Cochran.

The case was submitted to a jury on two special issues. In answer to such issues the jury found: (a) That the Storage Company sold Cochran's wool without his authority; and (b) that the sale of such wool was wilfully made.

According to Cochran's evidence, he stored this wool with the Storage Company for the purpose of holding it for a higher price, and for the purpose of securing a loan thereon in the way and manner above detailed — all of which was fully known by the officers and agents of the Storage Company. Also, according to Cochran's evidence, the jury was justified in concluding that the Storage Company sold this wool without his authority, against his will, and in disregard of his rights. According to the evidence offered by the Storage Company, it acted in good faith, and had full authority, orally given by Cochran, to sell this wool, at the time, under the circumstances, and for the price received. From the verdict of the jury we must conclude that the Storage Company sold this wool without Cochran's consent, and that its act in doing so was wilful — that is to say, was a wilful wrong.

Under the above record, the opinion of the Court of Civil Appeals holds that there is no evidence in this record to support the finding of the jury that the sale of Cochran's wool by the Storage Company was wilfully made. In our opinion such holding is in conflict with the opinion of the same court in Early Foster Co. v. Mid-Tex Oil Mills, Tex.Civ.App., 208 S.W. 224 (writ refused), and authorities there cited. We are in accord with the opinion in the early Foster case. De Shazo v. Wool Growers Central Storage Co., Tex.Sup., 162 S.W.2d 401, 404. As held by us in the De Shazo case, supra, it is the law that where the conversion of property "is attended with fraud, willful wrong, or gross negligence, and the property converted is of changing or fluctuating value,...