Denison v. Nunn

• Decision Date: 16 March 1927
• Docket Number: (No. 7089.)
• Parties: DENISON v. NUNN.
• Court: Texas Court of Appeals

293 S.W. 838

DENISON v. NUNN.

(No. 7089.)

Court of Civil Appeals of Texas. Austin.

March 16, 1927.

Rehearing Denied April 20, 1927.

Appeal from District Court, Williamson County; Cooper Sansom, Judge.

Action by J. W. Nunn against F. L. Denison. From the judgment, defendant appeals. Affirmed.

A. L. Curtis, of Belton, and Wilcox & Graves, of Georgetown, and Jno. B. Daniel, of Temple, for appellant.

W. H. Nunn, of Georgetown, and Wood & Wood, of Granger, and Critz & Lawhon, of Taylor, for appellee.

BAUGH, J.

Nunn sued Denison on two promissory notes, one for $2,200, dated December 26, 1924, and the other for $3,400, dated December 26, 1925, signed, "Granger Motor Co., by C. A. Hughes, Mgr." Denison was the sole owner of the Ford agency and garage at Granger, operating same in the trade-name of Granger Motor Company, with C. A. Hughes in full charge thereof as manager. We will designate the parties as in the lower court. Plaintiff alleged full power in Hughes to execute the notes. Defendant answered by plea of non est factum, denying such authority in Hughes. In a supplemental petition, plaintiff pleaded implied, if not express, authority in Hughes, estoppel against defendant to deny Hughes' authority, and, in the alternative, that the money borrowed from him for which the notes were executed went to pay drafts with bills of lading attached for cars, trucks, tractors, and parts, and actually went into defendant's business, and that, if not liable on the notes, he was liable for money had and received. By supplemental answer, the defendant pleaded, among other things, that Hughes' authority to borrow money was confined to the First National Bank of Granger, and there in a sum not to exceed $6,000. Further statement of the pleadings will be made in discussing the issues raised.

The case was submitted to a jury on special issues, which, with their answers thereto, were as follows:

"(1) Did a general agency, as that term is hereinbefore defined, exist between the defendant, Denison, and C. A. Hughes as agent for defendant's business in Granger at and prior to the time the said Hughes executed and delivered to plaintiff, Nunn, the two notes sued on herein? Answer: Yes.

"(2) If you answer question No. 1 `Yes,' then answer this question: Did the defendant, in his contract of agency with C. A. Hughes, limit his borrowing money and execution of promissory notes, to the First National Bank of Granger, and the amount of such credit to about $6,000? Answer: No."

"(4) In lending money to the said agent, Hughes, on the two promissory notes sued on herein, did the plaintiff, Nunn, act in good faith, and in ignorance of private instructions of limitations, if any, given by defendant to said Hughes, in the contract of agency? Answer: Yes.

"(5) Taking into consideration the character and nature of the business in which the said Hughes was employed by the defendant as agent and manager, was it necessary or proper, in conducting said business, for the said Hughes to execute the two notes herein sued on and borrow money represented by said two notes? Answer: Yes.

"(6) Did defendant, in his said business, get the benefits of the identical proceeds derived from the execution and delivery by the said Hughes of the two notes herein sued on? Answer: Yes."

Appellant brings 50 assignments of error and 29 propositions of law in which in various ways he attacks the sufficiency and form of plaintiff's pleadings, the action of the trial court in striking out portions of his supplemental answer, the court's charge, the admissibility of certain testimony, and contends that, under the testimony and the findings of the jury, the judgment was clearly erroneous. To discuss these questions in detail is unnecessary and would unduly prolong this opinion. The pleadings alone compose 47 pages of the transcript. The real question in the case is whether or not, in the conduct of Denison's business at Granger, Hughes was shown to have had authority to borrow money from Nunn and to execute the notes sued upon. We have reached the conclusion that such authority was shown, and that the judgment of the trial court should be affirmed. Though not referring to them in detail, we shall discuss those propositions raised by appellant which we deem material.

Plaintiff's allegations in part as to Hughes' authority were as follows:

"That several years prior to the 26th day of December 1924, and up to and including the 26th day of December, 1925, and all during said time, the defendant operated and managed said business entirely through his general agent, C. A. Hughes, who had absolute and complete general authority to do any and everything that was necessary or proper to be done in the operation and management of said business, including the buying and selling of tractors, automobiles, and parts for said tractors and automobiles, oil, tires, and other merchandise usually bought and sold and handled in a business of that character, the hiring, paying, and discharging of employees, workmen, and mechanics, the discounting of notes, the borrowing of money in the name of the defendant for the operation of said business, and maintaining of a cash checking account in bank, and executing notes therefor in behalf of the defendant, and in extending the time of payment of said notes, in renewing the same, in the paying off and discharging of said notes, the securing of money and funds so to do, and in the execution of new notes therefor; and has authority generally to do all and everything proper and necessary to carry on and operate said business, as general manager thereof. That the said Hughes was, during all of said time, in actual, public, and notorious charge of said business, operating, conducting, and controlling the same as above alleged, and actually, publicly, habitually, and notoriously doing and performing all of the acts and authority above and hereinafter alleged."

Following this, plaintiff alleged both express and implied authority in Hughes to execute the notes sued upon; and that the defendant, by so vesting such general authority in Hughes and so holding him out to the public, and because the business had actually received the benefits of the money borrowed, was estopped to deny his authority to execute the notes in question. These pleadings were, we think, clearly sufficient to present both the question of the agent's authority and the issue of estoppel.

We think the evidence fully sustains the broad powers vested in Hughes as above alleged. In fact practically the only limitation thereon claimed by Denison himself was that, in the negotiation and sale of the notes taken from customers, the indorsement thereof should be "without recourse," and that, in borrowing money in the conduct of the business, Hughes was to confine same to the First National Bank and to a sum not in excess of about $6,000. That latter limitation he claims to have made in a conversation with Mr. Storrs, president of said bank, about the time Hughes took charge of the business in 1922. In this he was...