Grayburg Oil Co. v. Nevill

• Decision Date: 30 November 1927
• Docket Number: (No. 7863.)
• Parties: GRAYBURG OIL CO. v. NEVILL et al.
• Court: Texas Court of Appeals

300 S.W. 960

GRAYBURG OIL CO. v. NEVILL et al.

(No. 7863.)

Court of Civil Appeals of Texas. San Antonio.

November 30, 1927.

Rehearing Denied December 23, 1927.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by the Grayburg Oil Company against H. D. Nevill and others for recovery of money. Judgment for plaintiff against H. D. Nevill and that plaintiff take nothing as to Commercial National Bank, and plaintiff appeals. Affirmed.

Victor Keller, of San Antonio, for appellant.

Cunningham, Moursund & Johnson, of San Antonio, for appellees.

FLY, C. J.

Appellant sought a recovery from H. D. Nevill and the Commercial National Bank of San Antonio, of the sum of $4,051.31, based on allegations that appellant had sold certain products to certain parties engaged in the retail sale of oil and gasoline in Seguin, and that H. D. Nevill, instead of delivering the collections from said parties to appellant, had deposited the same in the said bank in his own name and received credit for the same on the books of said bank; that Nevill paid to appellant $4,103.77 of the amount collected by him from the Seguin dealers, the whole amount of said collections being $8,154.48, leaving due appellant the sum of $4,051.31; that the payments by the automobile dealers of Seguin were made by checks drawn in favor of appellant, and indorsed by Nevill as "Grayburg Oil Company, H. D. Nevill," or as "Grayburg Oil Company," and were by said bank placed to the credit of the personal account of said Nevill. The court rendered a judgment against H. D. Nevill in favor of appellant for $3,112.94, with interest from date of judgment, and costs, and that appellant take nothing as to the Commercial National Bank.

The court found as facts that appellant, on or about May 13, 1925, and at various times thereafter up to October 2, 1925, sold gasoline to the Seguin Auto Dealers' Association, which was a partnership composed of John R. Walker and H. D. Nevill; that appellant knew Walker was a partner in the association, but did not know Nevill was a partner of said firm; that the goods, wares, and merchandise were sold by appellant directly to the Auto Dealers' Association, and not to the individual firms in Seguin, to whom appellant alleged they were sold; and that appellant, while not knowing that Nevill was a member of the Auto Dealers' Association, knew that John R. Walker was a partner in that concern and that Nevill was acting for Walker or the association in hiring and paying drivers of trucks belonging to the association and in the collection of money and checks for merchandise sold by the auto association to individual dealers. The court further found that the Seguin Auto Dealers' Association, before opening an account with appellant, purchased a truck in the name of Nevill with the consent of appellant, and had it equipped with a large gasoline tank, purchased by the association or partnership from appellant, and had it painted so as to resemble trucks belonging to appellant, being distinguished by having the words "Grayburg Oil Company Products" painted on it instead of "Grayburg Oil Company." None of the goods, wares, and merchandise mentioned in the petition were sold by appellant to any of the dealers in Seguin named in the account, nor did appellant look to them for payment, and none of them were liable to appellant for any sum of money. The court further found:

"The Seguin Auto Dealers' Association, a partnership composed of John R. Walker and the defendant, H. D. Nevill, sold the gasoline and oil purchased by said partnership from plaintiff to the individual dealers in Seguin, Tex., hereinbefore mentioned, which said gasoline and oil was paid for by checks and cash, which said checks and cash were delivered to the truck driver who was then and there employed by the partnership, and who received said checks and moneys for and thereafter delivered them to the said Nevill. Most of the checks were payable to the order of the Grayburg Oil Company, but some of said checks were payable to the order of Grayburg Oil Company Products. That said moneys and checks were given for the purchase price of the gasoline and oil received by the purchasers at Seguin from said partnership or association, and not to be applied to any other account or purpose. That the purchasers of said gasoline and oil from the Seguin Auto Dealers' Association, a partnership, believed at the time that they were dealing with the Grayburg Oil Company, plaintiff herein, but the plaintiff, the Grayburg Oil Company, well knew at said time that the said purchasers, that is, the individual dealers in Seguin, were dealing with the association or partnership, and plaintiff knew that the funds and checks given by said purchasers were the property of the association or partnership, and not the property of the plaintiff.

"The defendant, H. D. Nevill, indorsed the checks received by...