Freeberg v. Securities Inv. Co. of St. Louis

• Citation: 331 S.W.2d 825
• Decision Date: 20 January 1960
• Docket Number: No. 13544,13544
• Parties: Donald E. FREEBERG, Appellant, v. SECURITIES INVESTMENT COMPANY OF ST. LOUIS et al., Appellees.
• Court: Texas Court of Appeals

Page 825

331 S.W.2d 825

Donald E. FREEBERG, Appellant, v. SECURITIES INVESTMENT COMPANY OF ST. LOUIS et al Appellees.

No. 13544.

Court of Civil Appeals of Texas, San Antonio.

Jan. 20, 1960.

Rehearing Denied Feb. 17, 1960.

Drought & Kaufman, San Antonio, for appellant.

Jack F. Ridgeway, San Antonio, for appellee.

POPE, Justice.

Donald E. Freeberg, plaintiff below, appeals from a summary judgment in favor of defendants, James D. McClaugherty and Securities Investment Company of St. Louis. Primarily, the case concerns the application of Sections 33, 52 and 53 of the Certificate of Title Act, 3 Penal Code, Art. 1436-1, Vernon's Tex. Penal Code.

The trial court granted a summary judgment in favor of defendant McClaugherty and denied plaintiff's motion for severance. Later the court granted Investment Company's motion for summary judgment, and the appeal is from a judgment which consolidated those two judgments. At the outset, we must discuss the showing required of a respondent in a summary judgment hearing. The judgment recites, and McClaugherty and Investment Company make frequent mention in their briefs, that Freeberg failed to file counter-affidavits to defendants' motion for summary judgment.

Summary judgments are not granted by default, but upon the movant's discharge of his burden to show the absence of fact issues. If movant's showing poses only a question of law, there is no need to file counter-affidavits. Couey v. Arrow Coach Lines, Tex.Civ.App., 288 S.W.2d 192. When movant's own showing develops a fact dispute, he defeats his own summary judgment, though there are no counter-affidavits. Jindra v. Jindra, Tex.Civ.App., 267 S.W.2d 287; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; 4 McDonald, Texas Civil Practice, Sec. 17.26.3. A respondent is entitled to rely upon admissions, depositions and exhibits in the record, though he has not filed counter-affidavits. Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467. On the basis of either of these rules, Freeberg had standing before the court at the summary judgment hearing, and the inference that he lost because he did not have a sworn answer or opposing affidavits is not correct.

Donald E. Freeberg, late in 1955, was about to be transferred for military service to Germany. He owned a trailer house, and his certificate of title recorded a lien. The lien had been paid and was released on the back of the certificate of title. Freeberg wanted to sell the house, so he contracted Donald L. Hamilton, the sales manager of Hilltop Trailer Sales, an assumed name of Alliance Finance Corporation. He delivered to Hilltop his certificate of title which showed he was the owner. He did not then transfer the certificate and it has never been transferred. He also delivered to Hilltop a written contract which made Hilltop his agent to sell his trailer house for a commission of five per cent. The instrument 'appoints the consignee his true and lawful attorney-in-fact for the limited purpose of delivering the title of the said house trailer in accordance with the terms of this agreement.' It made the consignee the judge of the good credit and business standing of the purchaser. It authorized Hilltop 'to collect for and in behalf of the consignor full payment for the house trailer so sold and to immediately pay to the consignor any amount collected. * * *' That instrument empowered Hilltop to act as agent to sell, to make a sale on credit, to transfer the title, and to collect for Freeberg. Freeberg also signed another power of attorney to transfer a motor vehicle, but it was signed in blank. He delivered it to Hilltop.

Neither Freeberg nor his agent, Hilltop, has ever executed a transfer of the certificate of title to the trailer house, though it has been in Hilltop's possession, or that of its assigns, since the day Freeberg delivered it to Hilltop in December, 1955. Section 33 of the Certificate of Title Act says that no motor vehicle may be disposed of at subsequent sale unless the owner designated in the certificate of title shall transfer the certificate of title. Section 52 says that it is unlawful to buy or acquire any title other than a lien without then and there demanding of the proposed seller the registration receipt and certificate of title. Section 53 declares that sales in violation of the Act shall be void and that no title shall pass unless the provisions of the Act have been complied with. Though neiter Freeberg nor his agent has done what the Act says is necessary, the judgment of the trial court is that Freeberg made a valid sale of the trailer house, and that the purchaser, McClaugherty, acquired title.

There is no dispute in the fact that Hilltop had the power to act as agent for Freeberg. From the undisputed showing, however, Hilltop did not act as agent for Freeberg, but acted solely for itself as though it were the owner. Freeberg was dealt out entirely. He started as sole owner, but at the end of the transaction he owned nothing and received nothing. The trial court has confused Hilltop as agent for Freeberg, with Hilltop as owner, and has concluded that because Hilltop had power to sell for Freeberg, it could therefore sell for itself. Hilltop's sole interest in the transaction was a five per cent commission.

Hilltop on December 30, 1955, undertook to sell the Freeberg trailer house to James D. McClaugherty. McClaugherty, as a partial payment, traded in and delivered to Hilltop his 1951 Liberty trailer-house and transferred title to Hilltop. He executed a note payable to Hilltop in the amount of $5,850. He entered into a time purchase contract which showed that it was between him as purchaser and Hilltop, a dealer, as the seller. All of these documents showed that McClaugherty dealt with Hilltop as though Hilltop, itself, was the owner. The judgment recites that these documents were executed in favor of Hilltop, but not as agent for Freeberg. The McClaugherty note was immediately transferred to Alliance Finance Company, and later, on March 12, 1956, Securities Investment Company bought the note and lien from Alliance.

From the undisputed facts, Hilltop knew that Freeberg was the sole owner, and McClaugherty, the purchaser, knew it too. The depositions in the record show that Hilltop told McClaugherty before the sale, that Hilltop did not own the trailer house but was acting as selling agent for Freeberg. Apart from this actual knowledge, the Certificate of Title Act puts such information easily within reach of a purchaser to determine who the true owner may be. The purpose of the Act is to manifest this fact.

The error in this has arisen from a confusion of Hilltop as mere agent for Freeberg, with Hilltop the dealer. Though Hilltop had power to sell for Freeberg, the owner, it was not the owner. Pride v. Brandon, Tex.Civ.App., 227 S.W.2d 385, 386; 7 Tex.Jur.2d Automobiles, Sec. 61. Freeberg's complaint is that Hilltop converted the trailer house and all evidence of title to its own use, and that the purchaser knowingly bought from the converter as owner, instead of as Freeberg's agent. To justify his purchase from Hilltop acting as owner, and to show good faith, McClaugherty points to the things which he did. The undisputed facts show that he filled in an application for a new title, he paid the license fees for the trailer, he filled in a tax affidavit and a weight affidavit. All of this does not obscure the fact that McClaugherty also bought the trailer from Hilltop whom he was told did not own it. Examination of the certificate of title could have revealed nothing more,...