Dodd & Co. v. Arnold
| Decision Date | 31 October 1866 |
| Citation | 28 Tex. 97 |
| Court | Texas Supreme Court |
| Parties | DODD & CO. v. B. D. ARNOLD. |
It is error for the court below to charge the jury upon a supposed state of facts, as to which there is no allegation in the pleadings or evidence before the jury. Pas. Dig. art. 1464, note 562; 4 Tex. 455;9 Tex. 428;12 Tex. 418;14 Tex. 592;20 Tex. 118.
The good faith of a purchaser cannot invest him with the title to property, if his vendor had no title to it.
APPEAL from McLennan. This case was tried before Hon. N. W. BATTLE, one of the district judges.
In October, 1858, John Dodd and E. V. Shackleford, keepers of a livery stable in Hempstead, under their partnership name of Dodd & Co., hired a buggy, mule, and harness to two strangers, who called themselves Merchant and brother, or Wilson and brother, for the purpose of conveying them to Belton. These men went to Waco, and there sold the buggy, mule, and harness to Arnold, the appellee, who was admitted to be an “innocent purchaser, for a valuable consideration paid therefor, without any notice of a defect of title.”
This suit was instituted by Dodd & Co. against Arnold, on the 1st of December, 1858, for the recovery of the property, or for its value, which was alleged to be $375.
Neither in the pleadings of the defendant nor in the evidence at the trial was there any pretense that Dodd & Co. had sold or in any manner transferred to Merchant and brother a title to the property. But the defendant answered a general denial, and also answered specially that the plaintiffs, at the time of the hiring, obtained from Merchant and brother security for the return of the property, by the deposit of a receipt or draft. There was evidence of admissions by Dodd that he had received as such security a receipt of certain merchants at Huntsville for a draft transferred to them by Merchant and brother, but that the draft proved to be a forgery, and the security was therefore worthless.
At the fall term, 1859, the plaintiffs obtained a verdict and judgment for $165, but on their motion a new trial was granted.
The case came to trial a second time at the fall term, 1860, when the court instructed the jury as follows: “The court instructs the jury that if they believe from the testimony that Dodd & Co. placed the buggy and horse in the possession of Merchant and brother with the intent that the property should pass to Merchant and brother in the event they should not re-deliver the property to them, reserving collateral security, and that Merchant and brother sold the property to the defendant for a fair price, without notice of Dodd & Co.'s claim, then the court charges that B. D. Arnold is a bona fide purchaser, and will hold the property in preference to the original owners, and the fact that the original owners were defrauded will not impair the rights of Arnold.
The reason is, that the original owners, by putting their horse and buggy in the hands of the fraudulent vendees, had reposed confidence in them, and enabled them to commit a fraud. Therefore, the equity of the original owners is not equal to that of the person who has bona fide parted with his money or property in the purchase from the fraudulent vendees. The original vendors, by their imprudence, enabled the fraudulent vendors to defraud some one, and should themselves be the sufferers, rather than a third person, who must otherwise be defrauded.
On the contrary, if Dodd & Co. did not trust Merchant and brother, investing them with none of the indicia of ownership of property, and did not reserve collateral security to indemnify themselves if the property should not be returned, but only hired the property to Merchant and brother, to be by them returned, the plaintiffs will be entitled to recover.”
Verdict and judgment for the defendant; new trial refused, and plaintiffs appealed.
F. W. Chandler, for the appellant. Appellants had shown the relation of bailor and bailee to exist between them and the men Wilson and brother, or Merchant and brother, and they had no right to sell the property at all, and B. D. Arnold could not hold the same, even though the purchase from them was bona fide, and without notice that the property was appellants'.
Story, Bailments, §§ 101, 102, 394, 397, 414, 415; 2 Saund. 47; Story, Sales, §§ 108, 194, 200, 201; 1 Johns. 471;2 Mass. 378;8 Id. 519;14 Id. 500;10 Tex. 344;6 Wend. 609;11 Id. 80; 18 La. 585; 13 Id. 460; 20 Wend. 267, and authorities there cited.
Nowlin & Herring, for the appellee. In Salters v. Everett, 20 Wend. 279, we find the following language: ...
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...at least, that a trial court commits error when he submits to the jury an issue not raised both by the pleadings and the evidence. Dodd v. Arnold, 28 Tex. 97; Loving v. Dixon, 56 Tex. 75; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Missouri Pacific Ry. Co. v. Lyde, 57 Tex. 505; Galve......
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