Guerra v. Brumlow

• Decision Date: 24 February 1982
• Docket Number: No. 16637,16637
• Citation: 630 S.W.2d 425
• Parties: Virgil GUERRA, Jr., Appellant, v. J. O. BRUMLOW, Appellee.
• Court: Texas Court of Appeals

Page 425

630 S.W.2d 425

Virgil GUERRA, Jr., Appellant, v. J. O. BRUMLOW, Appellee.

No. 16637.

Court of Appeals of Texas, San Antonio.

Feb. 24, 1982.

T. Kellis Dibrell, Dibrell, Dotson, Dibrell & Dibrell, San Antonio, for appellant.

Ted Lee, San Antonio, M. C. Whitehead, Long & Whitehead, Karnes City, for appellee.

Before CADENA, C. J., and KLINGEMAN and ESQUIVEL, JJ.

OPINION

KLINGEMAN, Justice.

This is an appeal from a take-nothing judgment entered against plaintiff Guerra in a deceptive trade practice claim involving the purchase of a bull. Plaintiff purchased a bull, El Toro I, along with some other animals at an auction. Plaintiff executed a promissory note payable to Brumlow and Farris as a consideration for the animals purchased, including El Toro I. Farris subsequently sold his interest in the note to Brumlow. Plaintiff's deceptive trade practice action not only included a claim in respect to El Toro I but other claims also. Brumlow counter-claimed against Guerra for the alleged balance due on the promissory note. Trial was to a jury. Brumlow moved for a judgment in part non obstante veredicto and in part based on the jury verdict. The trial court entered judgment denying plaintiff relief under Texas Deceptive Trade Practices Act and awarded Brumlow the unpaid balance due on the note from Guerra. Brumlow was awarded attorney's fees against Guerra, but Guerra's claim for attorney's fees was denied. A take-nothing judgment was entered in favor of Edmund Tom, a third party in Brumlow's third party complaint against Tom. No appeal was taken as to the Edmund Tom portion of the judgment. ¹

The jury in the trial below found that Brumlow made a misrepresentation that the bull in question, El Toro I, was a good breeder when in fact it was not; that such was the proximate cause of damages to Guerra; and that the sum of $1,850.00 would reasonably compensate Guerra for his damages.

The pertinent facts of the case relating to the sale of El Toro I to appellant are largely undisputed. An auction was held by the American Brahmental Association on April 30, 1977. Dr. Farris and Dr. Brumlow, both veterinarians, were officers in that association. Dr. Farris was an employee of Dr. Brumlow's and they were members of a ranching partnership also. Prior to the April 30 sale, Guerra went to a feedlot with Farris and Brumlow to look at some animals to purchase. Guerra chose two bulls, but since they had already been consigned to the sale, it was agreed that the bulls would be run through the sale and Guerra would purchase them there. Before the sale, the two bulls were tested for fertility and were found to be unsatisfactory; therefore, Guerra then purchased El Toro I at the auction. Guerra paid $1,850.00 for El Toro I and Brunlow guaranteed him to be a good breeder. Guerra also bought several other animals at the sale. Guerra did not pay for the animals at that time, but later executed a note on May 11, 1977, as payment for the animals. The note was made payable to both Farris and Brumlow and included the purchase price of El Toro I. Farris subsequently assigned his interest in the note to Brumlow and Brumlow is now the sole owner of the note.

After Guerra had taken delivery of El Toro I, he noticed that the bull was not following the cows. Guerra took the bull to a Dr. Nelson who tested the bull for fertility and found him to be a questionable potential breeder. Guerra then returned the bull to Brumlow and brought this suit against Brumlow for representing that El Toro I was a good breeder when, in fact, he was not. Brumlow counterclaimed for the amount still due on the note. Brumlow did not give Guerra credit on the note for the return of the bull. The bull, El Toro I, was killed by a poacher.

In this opinion, the contentions made by both plaintiff and defendant will be discussed in the following general areas: 1) deceptive trade practices; 2) promissory note; 3) submission of issues; 4) indispensible parties; 5) attorney's fees.

DECEPTIVE TRADE PRACTICES

A basic issue in the appeal is whether plaintiff Guerra can maintain an action as a "consumer" under the Deceptive Trade Practice Act against the defendant who allegedly owned no interest in the bull. Plaintiff contends that the recent Supreme Court decision of Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981) is controlling and that it allows him to recover under the Act even against one who is not the owner and seller of the goods. Defendant argues that Guerra was not a "consumer" within the Act as to Brumlow, even in the light of the recent Supreme Court ruling. Defendant maintains that he was a mere bystander to the transaction involving the sale of the bull. We disagree and hold that plaintiff is entitled to maintain this action against defendant as a consumer under the Act.

Until the Supreme Court handed down its opinion in Cameron v. Terrell & Garrett, Inc. the general rule was that in order to recover as a consumer under the Act one must seek or acquire goods or services from the person he sues. See Rutherford v. Whataburger, Inc., 601 S.W.2d 441 (Tex.Civ.App.-Dallas 1980, writ ref'd n. r. e.); Rodriguez v. Texas Employers' Ins. Ass'n., 598 S.W.2d 677 (Tex.Civ.App.-Fort Worth 1980, writ ref'd n. r. e.); Barthlow v. Metcalf, 594 S.W.2d 143 (Tex.Civ.App.-Houston (1st Dist.) 1980, writ dism'd); Hi-Line Electric Co. v. Travelers Ins. Co., 587 S.W.2d 488 (Tex.Civ.App.-Dallas 1979, writ ref'd n. r. e.) (per curiam), 593 S.W.2d 953 (Tex.1980). In Cameron however, the Supreme Court expressly disapproved Hi-Line Electric Co. v. Travelers Ins. Co., supra, and Barthlow v. Metcalf, supra, to the extent that they are inconsistent with the Supreme Court opinion. The Cameron case involved the purchase of a house by the plaintiffs, who relied on the representation by the seller's real estate agency that the house was of a certain square footage when it was, in fact, smaller. The plaintiffs sued the agency, which argued that the plaintiffs were not "consumers" under the Act as to the agency, since the plaintiffs did not seek or acquire goods or services furnished by such agency. The Supreme Court, in construing the definition of "consumer" under the Act, stated:

We find no indication in the definition of consumer in section 17.45(4), or any other provision of the Act, that the legislature intended to restrict its application only to deceptive trade practices committed by persons who furnish the goods or services on which the complaint is based. Nor do we find any indication that the legislature intended to restrict its application by any other similar privity requirement. In contrast, privity requirements have been dispensed with altogether in negligence suits, in implied warranty suits for economic loss, and, for the most part, privity requirements have also been abolished in strict liability suits. (Citation omitted.) The Act is designed to protect consumers from any deceptive trade practice made in connection with the purchase or lease of any goods or services. (Citation omitted.) To this end we must give the Act, under the rules of liberal construction, its most comprehensive application possible without doing any violence to its terms.

Id. at 540-41. The court then went on to hold that a person need not seek or acquire goods or services furnished by the defendant to be a consumer as defined in the Act and that the plaintiffs in Cameron were consumers because they purchased the goods on which their complaint is based.

The defendant in the case before us argued that Cameron is not controlling because the defendant in that case was the agent of the seller and was acting in the course of trade and commerce for compensation while the defendant here was a mere bystander to the transaction. It is clear that the Supreme Court placed no such restriction on the defendant. The Supreme Court stated in Cameron that the Act expressly provides that a consumer can bring suit if he has been adversely affected by "the use or employment by any person of an act or practice declared to be unlawful in section 17.46." Under the facts of this case Brumlow cannot be classified as a mere bystander. Assuming that Brumlow owned no interest in the particular bull which was involved in this suit, Brumlow was one of the officers in the association sponsoring the sale. It is clear that Brumlow was working closely with Dr. Farris in the sale: the purchase money note was payable to both Brumlow and Farris, and Brumlow later acquired the entire interest in the note. Guerra dealt with Brumlow in regard to the transaction, and Brumlow represented to Guerra that the bull in question was a good breeder. Guerra is entitled to a "consumer" status as to Brumlow.

The judgment denying Guerra damages against Brumlow in his deceptive trade practices claim is reversed and judgment here rendered for Guerra in the amount of $1,850, the amount of actual damages found by the jury.

PROMISSORY NOTE

Failure of consideration for a contract of sale or for notes given for purchase price of property may be shown by the fact that the purported property does not exist, or that it was worthless, or not as represented to the buyer. Stallings v. Moore, 73 S.W.2d 562 (Tex.Civ.App.-Fort Worth 1934, no writ); 13 Tex.Jur.2d § 71, Contracts. Since the issue of misrepresentation was submitted to the jury and found in Guerra's favor, we think a partial failure of consideration has been shown and Guerra is entitled to a setoff in the amount of $1,850, the purchase price of the bull in question.

Brumlow argues that Guerra failed to carry his burden of proving the amount of setoff because the damage issue included the wrong measure of damages. The damage issue as submitted to the jury inquires as to what amount of money would reasonably compensate Guerra. If there was any error in such submission, it was waived because Brumlow failed to properly object at trial. Unless a party objects to a charge on the grounds...