Cook v. Jaynes, 16110

• Court: Texas Civil Court of Appeals
• Writing for the Court: BATEMAN
• Citation: Cook v. Jaynes, 366 S.W.2d 646 (Tex. Ct. App. 1963)
• Decision Date: 21 February 1963
• Docket Number: No. 16110,16110
• Parties: Charles COOK, Appellant, v. E. H. JAYNES, Appellee.

Page 646

366 S.W.2d 646

Charles COOK, Appellant, v. E. H. JAYNES, Appellee.

No. 16110.

Court of Civil Appeals of Texas, Dallas.

Feb. 21, 1963.

Rehearing Denied March 15, 1963.

Jay S. Fichtner, Dallas, for appellant.

Matthews, Payne, Sands & Benners, Fred H. Benners, Dallas, for appellee.

BATEMAN, Justice.

Appellee brought this suit on one of the County Courts at Law of Dallas County for title and possession of a boat, an outboard motor and a boat trailer, all of the alleged total value of $500. Appellant contended that he was an innocent purchaser for value of the boat and equipment from one L. W. Schell. The court rendered summary judgment in favor of appellee.

We should first dispose of appellant's challenge to the jurisdiction of the trial court. In his amended petition appellee again sued for title and possession of the same personal property, again alleging its value to be $500., and also for the first time sued for actual damages of $150. for depreciation in value of the property, $150. for loss of use of the property, $600. for exemplary damages, and $300. attorney's fees, thus putting into controversy a total value of $1,700., which appellant asserts is $700. more than the maximum jurisdictional limit authorized for county courts by the Texas Constitution, Art. 5, Sec. 16. Vernon's Ann.St. However, in his amended petition appellee brought forward the only cause of action asserted in his original petition; i. e., the suit for title and possession of the boat, motor and trailer valued at $500. An almost identical situation was disclosed by the certified question answered by the Commission of Appeals in Isbell v. Kenyou-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762, 763, wherein it was held that where the amended petition repeats the allegations of the first or original petition, which alleged a cause of action clearly within the jurisdiction of the County Court, the fact that the amended petition also alleged damages in an amount exceeding the jurisdictional limit of $1,000. did not deprive the court of jurisdiction over the old suit. The Isbell case has been cited with approval by the Supreme Court in Haginas v. Malbis Memorial Foundation, Tex., 354 S.W.2d 368, 371; and by Courts of Civil Appeals in Sellers v. Spiller, Tex.Civ.App., 64 S.W.2d 1049, 1052, no wr. hist., and Western Wood Products v. Box, Tex.Civ.App., 248 S.W.2d 974, 975, no wr. hist. Accordingly we hold that the trial court was not without jurisdiction to dispose of the case.

We next consider whether the appellee has met the burden of establishing conclusively that there are no genuine issues as to material facts and that he was entitled to judgment for title and possession of the property as a matter of law. He assumed this burden by moving for summary judgment under Rule 166-A Vernon's Texas R.C.P. Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555, 559, err. ref. n. r. e., and Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Appellant contends this burden was not met in two particulars: (1) in that there were fact issues on the question of whether appellee was estopped to deny that Schell had actual or apparent authority to sell the property to appellant; and (2) in that fact issues were raised 'as to unjust enrichment of appellee' by reason of labor and material expended by appellant in working on the property, which he alleges added $225. to its value, and for which he sued appellee by counterclaim.

Appellee's motion for summary judgment was sufficient to show prima facie that he owned the property, but it also sets out that he delivered it to a repairman for repairs and that the repairman delivered it to L. W. Schell 'for storage and safekeeping pending Plaintiff's determination of what disposition he would make of' it. He does not say this was done without his knowledge or consent. On the other hand, appellant alleged that appellee placed the property with Schell for sale, thereby making Schell his real or apparent agent for that purpose, and was estopped from complaining of Schell's sale to appellant. Appellant also filed his own affidavit to the effect that prior to the filing of this suit he had several conversations with appellee in which appellee stated that he had sent the property to Schell for the purpose of selling the same.

Appellant's point of error, if taken literally, would restrict the inquiry to the question of whether there was a genuine fact issue as to whether appellee made Schell his apparent agent with apparent authority to seil the property. If we were convinced that this was the extent of appellant's contention, we would be compelled to overrule the point because it clearly appears from his answer to the motion for summary judgment and the contract between him and Schell that he dealt with Schell, not as appellant's agent, but as a principal who was apparently the owner of the property. 2 Am.Jur. 85, AGENCY, Sec. 103; Essex County Acceptance Corp. v. Pierce-Arrow Sales Co., 288 Mass. 270, 192 N.E. 604, 95 A.L.R. 1314.

But we are enjoined to construe the rules of procedure liberally to the end that justice may be achieved. Rules 1, 418(b) and 422, Vernon's Texas R.C.P.; Walker v. Bedell, Tex.Civ.App., 320 S.W.2d 913; Dial Temp Air Conditioning Co. v. Faulhaber, Tex.Civ.App., 340 S.W.2d 82, err. ref. n. r. e. It seems clear to us from a study of the point and the statement, argument and authorities under it that appellant is contending that his pleadings and affidavit raised an issue of fact as to whether appellee actually placed the property with Schell, with actual authority to sell it, or that appellee is estopped from denying such actual authority in that appellee so handled the matter, or permitted it to be handled, as to lead prospective purchasers such as appellant to believe that Schell was fully authorized to sell either as owner or as agent, and that his authority was apparent (in the sense of being obvious). Willis v. S. L. Ewing Co., Tex.Civ.App., 348 S.W.2d 415, no wr. hist.; Posey v. Adam Schaaf Co., Tex.Civ.App., 189 S.W. 977, no wr. hist.; Scruggs v. Crockett Automobile Co., Tex.Civ.App., 41 S.W.2d 509, err. dis. We are of the opinion that appellee failed to meet the burden of showing the contrary.

Appellant also says that the summary judgment was incorrect because of some slight discrepancy in the description of the property as contained in appellee's petition and in appellant's conditional sale contract; but as the case is being remanded for trial we leave that matter to be determined by the trial court.

We make the same disposition of appellant's point that the summary judgment should not have been granted until appellant's special exceptions had been acted upon. We agree that the proper, orderly manner for trial courts to dispose of such matters is to pass on objections to pleadings before rendering judgment, but there is nothing in this record to indicate that appellan...