Hooser v. G. M. Carlton Bros. & Co.

• Decision Date: 28 October 1926
• Docket Number: (No. 409.)
• Court: Texas Court of Appeals
• Parties: HOOSER v. G. M. CARLTON BROS. & CO.

288 S.W. 1095

HOOSER v. G. M. CARLTON BROS. & CO.

(No. 409.)

Court of Civil Appeals of Texas. Waco.

October 28, 1926.

Rehearing Denied December 9, 1926.

Appeal from Coryell County Court; L. M. Stinnett, Judge.

Suit by G. M. Carlton Bros. & Co. against E. H. Hooser and another. Judgment for plaintiff, and defendant Hooser appeals. Affirmed.

T. R. Mears, of Gatesville, for appellant.

McClellan & Cross, of Gatesville, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, G. M. Carlton Bros. & Co., a corporation, in the county court of Coryell county, to recover a judgment against Sam Bates on a promissory note for the sum of $262.85 executed and delivered to it by him, and to foreclose a mortgage lien given by him to secure the same on 65 acres of cotton. Appellee also sought a judgment against appellant E. H. Hooser, alleging that said Bates had produced about 13 bales of cotton on the mortgaged premises, and that he and said Hooser had converted said cotton to their own use and deprived appellee of the value of anything from the sale of said crop. Appellee further alleged that said Hooser was asserting some fictitious claim to said property and the proceeds thereof, but that such claim was inferior to appellee's mortgage. Bates made default. Appellant answered, in substance, that he owned a certain farm, and that said Bates occupied the same as his tenant; that said Bates had and exercised full control and dominion over said farm and over the crops raised thereon; that appellant was to receive half the crops raised on said farm as rent therefor and as compensation for the use of tools, teams, feed, etc.; that appellant made advances to said Bates of the aggregate sum of $629; and that he had a landlord's lien therefor, which was superior to appellee's mortgage. Appellant also alleged that said Bates raised a crop of 110 acres of cotton on said farm, only 65 acres of which was mortgaged to appellee. He expressly denied that the relation existing between him and said Bates was that of landowner and cropper. He further expressly denied that he had ever had possession of or exercised any control over any of the crop of cotton raised on the rented premises, or that he had done anything in the premises which could constitute in law a conversion of said cotton, or any part thereof.

The case was tried before a jury. The issues submitted and the answers of the jury thereto were as follows:

"(1) Was the relation of E. H. Hooser and Sam Bates, under the terms of their agreement, that of landlord and tenant or that of landowner and cropper? Answer: Landlord and cropper.

"(2) Were any advances made by E. H. Hooser to Sam Bates to work the lands covered by Carlton's mortgage? Answer: Yes.

"If answered `yes,' then (3) What was the amount of advances made by E. H. Hooser to Sam Bates to work land covered by Carlton's mortgage? Answer in dollars and cents. Answer: $195.

"(4) What sum of money do you find, if any, that the defendant Sam Bates has repaid on advances made by E. H. Hooser? Answer: $337.50.

"Now, if you should answer Special Issue No. 1 `landowner and cropper,' then answer issue (5) What amount of the crop or proceeds thereof, that was raised on the premises covered by Carlton's mortgage, was paid by Bates to Hooser? Answer in dollars and cents as you find from the facts before you. Answer: $675."

The court rendered a judgment on the verdict of the jury, awarding appellee a judgment against the defendant Bates in the sum of $289.21, the amount of the note sued on, with interest and attorney's fees, and against appellant Hooser for said sum of $289.21, "as if for conversion of mortgaged property," Hooser alone has appealed. There is no statement of facts presented with the transcript in this appeal.

Opinion.

Appellant contends that the verdict of the jury is not responsive to the pleadings nor supported thereby, and that it is insufficient in law to authorize the money judgment rendered by the court against him "as if for conversion of mortgaged property." This contention is based on appellant's construction of the verdict. He claims that said verdict merely finds that he received certain moneys arising from the sale of the cotton grown on the mortgaged premises, and that such finding is insufficient to sustain a charge of conversion.

The general rule is that, in the absence of a statement of facts, the verdict is presumed to be supported by the evidence. M., K. & T. Ry. Co. v. Waggoner (Tex. Civ. App.) 109 S. W. 971, 973, affirmed 102 Tex. 260, 263, 115 S. W. 1172. The same rule applies with reference to the findings of fact and the judgment rendered by the court in cases tried without the intervention of a jury. City of San Antonio v. Berry, 92 Tex. 319, 326, 327, 48 S. W. 496; Tarrant County v. Reed, 28 Tex. Civ. App. 425, 67 S. W. 785, 786 (writ refused); Connell v. Nickey (Tex. Civ. App.) 167 S. W. 313, 321 (writ refused); Harkleroad v. Leonard, 28 Tex. Civ. App. 133, 67 S. W. 127, 128, 129; Petty v. Petty (Tex. Civ. App.) 57 S. W. 923. This case, however, was submitted to the jury on special issues. The judgment of the court in such cases may, under our practice, be based in part on the verdict and in part on findings by the court, either express or implied, in connection therewith or supplemental thereto. Though there be no express findings such findings are implied in support of the judgment in all cases where there is any evidence to sustain them. R. S. art. 2190; American Nat. Bank. v. American Loan & Mortgage Co. (Tex. Com. App.) 228 S. W. 169, 172, par. 6. Under this statute, in the absence of a statement of facts, we are required to presume that the evidence sustained the trial court...