Jackson v. Means
| Decision Date | 02 January 1929 |
| Docket Number | (No. 939-5046.) |
| Citation | 12 S.W.2d 167 |
| Parties | JACKSON et al. v. MEANS et al. |
| Court | Texas Supreme Court |
Action by J. S. Means and others against Rice R. Jackson and others. Judgment denying recovery to plaintiff was reversed and rendered by the Court of Civil Appeals (299 S. W. 344), and the case was remanded as to the other parties, and defendants bring error. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.
B. O. Baker, of Dallas, and J. L. Goggans, of Breckenridge, for plaintiffs in error.
Cockrell, McBride, O'Donnell & Hamilton and W. F. Johnson, all of Dallas, for Miss Cora M. Harvey.
J. Lee Zumwalt and John W. Pope, both of Dallas, for defendants in error.
Crate Dalton, of Dalhart, for Nathan Powell.
The defendant in error J. S. Means owned a certain lot in an addition to the city of Dallas. He executed a power of attorney to Nathan Powell to sell and convey it for any sum of money or other consideration and on such terms as to Powell might seem most to Means' advantage, and to receive the consideration for which the lot might be sold, and to execute proper receipts, releases, and acquittances, and to execute to the purchaser a deed, giving to said Powell other general powers customary to be given in a general power of attorney. The substance of this power of attorney is embraced in the opinion of the Court of Civil Appeals. 299 S. W. 344. By virtue of this power of attorney, Powell sold the lot to Cora M. Harvey for $1,250, receiving the consideration in cash. Powell made no report of this transaction to Means, and never paid over this money to him or any one authorized by Means to receive it. Means finally discovered that Powell had sold the lot and that he had executed a deed conveying it, which deed recited a cash consideration of $500 and the execution and delivery of two promissory notes payable to Means, due one and two years thereafter. This suit was then brought against Cora M. Harvey and others by Means, based on the execution and delivery of these two notes, alleging ownership of the notes in Means and nonpayment and past-due dates. It appears without dispute that Powell demanded cash for the lot, but that Miss Harvey desiring to purchase it only had $500, and the plaintiff in error Rice R. Jackson agreed to furnish her the remaining purchase money, and that the deed should recite the execution and delivery of the notes with a retention of the vendor's lien, and that these notes should be indorsed in blank by Powell as the agent of Means without recourse and delivered to Jackson. Jackson afterwards indorsed the notes to other parties, who are plaintiffs in error here, and Miss Harvey paid them when they became due. The record contains this agreement entered into by the parties: "That Nathan Powell, Dr. Rice R. Jackson, and Miss Cora M. Harvey, if present and testifying in this case, would testify that Nathan Powell demanded and received all cash for said lot on the day of sale; that Miss Cora M. Harvey not having but $500 in cash, it was agreed between Nathan Powell and Dr. Rice R. Jackson that Dr. Rice R. Jackson should furnish and pay the other $750.00 in cash, and that notes to the amount of $750 should be signed by Miss Cora M. Harvey, payable to the order of J. S. Means, and indorsed without recourse to Dr. Rice R. Jackson; that the execution of the deed and notes and the payment of the entire $1,250 consideration for the lot was a simultaneous transaction."
The district court denied any recovery to the plaintiff Means, the defendant in error here, but upon appeal to the Court of Civil Appeals at El Paso that court reversed the judgment of the district court and rendered a judgment in favor of the defendant in error Means, remanding the case as to the other parties for a retrial on their various cross-actions. The judgment of the Court of Civil Appeals is based upon the conclusion reached by that court that Powell, under the power of attorney, had no authority to indorse and transfer the notes received and payable to his principal in the manner he did.
The plaintiffs in error have presented one assignment of error and one proposition thereunder. This assignment of error and this proposition are as follows:
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