Kanaman v. Hubbard

• Decision Date: 18 October 1913
• Citation: 160 S.W. 304
• Parties: KANAMAN v. HUBBARD et al.
• Court: Texas Court of Appeals

160 S.W. 304

KANAMAN v. HUBBARD et al.

Court of Civil Appeals of Texas. Dallas.

October 18, 1913.

Rehearing Denied November 8, 1913.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by W. McK. Hubbard and others against W. I. Kanaman. From a judgment for plaintiffs, defendant appeals. Affirmed in part, and reversed and remanded in part.

Allen & Flanary, of Dallas, for appellant. K. R. Craig and Ross M. Scott, both of Dallas, for appellees.

RASBURY, J.

Appellees filed suit in the court below against appellant, seeking to rescind the sale by appellant and purchase by appellees of a seven-passenger Moline automobile on the ground of fraud, and to recover the purchase price paid therefor. Ancillary to the suit attachment was levied upon the automobile at the instance of appellees by the sheriff of Dallas county, who took possession of same. Appellant answered with general demurrer and denial, and specially denied the fraud and the right of appellees to rescind the contract of purchase. Alternately, however, appellant averred that, in the event the automobile should be held to be his property, then the levy of the attachment thereon was wrongful, and that he had been injured by said levy in that the car at the time of the levy was of the reasonable market value of $2,500, but that when it was sold by order of court upon application of the appellees it only netted $743.70, due to the fact that it was injured while in the custody of the sheriff, damaging appellant thereby the difference between $2,500, its market value, and $743.70 the amount for which it was sold; as well as the further sum of $5 per day during the time he was deprived of its use. After answer by appellant appellees filed in the suit a motion against the sheriff and the sureties upon his official bond, averring the issuance of the attachment and its levy by the sheriff upon the automobile, and the taking of the same by the sheriff, who afterwards delivered it to one Chandler, as special bailee and charging the sheriff and his bailee with failure to keep and preserve same according to law, and alleging that the sheriff and his said bailee placed the car in public service as a common carrier of passengers, and rented same to other persons, receiving for its use and rental an income of $500, and injured said car as well by such use $1,500, by which the parties to the controversy suffered loss and damage in the sum of $2,000, and as a consequence the fund in the custody of the court for the security of appellees' demand or to be returned to appellant, as the case might result, suffered the loss of such amount. Appellees prayed accordingly that the sheriff and his bailee be required to pay into court said amount of $2,000, and that the appellant be notified of the motion against the sheriff, and be required to join in the prosecution of the same, or upon a failure to do so be thereafter estopped from all claims for damages against appellees growing out of the levy of the attachment upon said property. Appellant adopted the allegations of appellees' motions against the sheriff only in the event it should be held he could not recover against appellees for the negligence of the sheriff. The sheriff and his sureties met the motion by general demurrer and denial, and specially averred that the automobile was placed in the possession of the bailee at the instance of appellees, whereby the bailee became the agent of appellees, and for whose misconduct the sheriff was not liable. Prior to trial, as alleged by appellant, the car was sold under order of court upon application of appellees, and netted at such sale the sum of $743.70.

Upon trial by jury verdict was for appellees against appellant for $2,512.75, and against the sheriff and his sureties for $553.68. Judgment was in accordance with the verdict, and provided that any sum paid by the sheriff on the judgment against him should go as a credit on the judgment against appellant, and that appellant, in event he paid appellees' judgment against him, should be subrogated to all rights in the judgment against the sheriff.

The verdict of the jury warrants the following conclusions of facts: Appellees were engaged in Ft. Worth in the purchase and sale of automobiles, and were buying and selling the Moline cars. Appellant was state agent for the Moline car, and appellees could buy said car only through appellant. In June, 1910, appellant had in his possession at Dallas for sale a Moline car known as Moline 40, Model K, seven-passenger, and endeavored to sell same to appellees. Appellees informed appellant that, because of the absence of any general demand for such a car, they would not buy until they could first find a customer who wanted a similar car. Subsequently Roy L. Kanaman, brother to appellant, but unknown to appellees, falsely representing himself to be J. F. Adams, of Floydada, Tex., and at the instance of appellant, called upon appellees in Ft. Worth, and sought to purchase from them a car of the character described above, to be used by him in the operation of an automobile line. Appellees explained to Roy L. Kanaman, alias J. F. Adams, that they did not have such a car in stock; but if Kanaman would accompany them to Dallas they could show him such a car. Kanaman said it was unnecessary, since he had used same sort of car, and knew what it was. Thereupon appellees agreed to deliver to Roy L. Kanaman the car he desired at Ft. Worth the following morning for the price of $2,500. At Kanaman's request appellees signed a written contract to so deliver the car, and Kanaman, as an earnest of his intention to pay the purchase price, and upon demand of appellees, deposited $50 with the appellees. Immediately afterward appellees went to Dallas, and purchased the car in controversy in this litigation from appellant, paying him therefor $2,250. Roy L. Kanaman did not call the next day to receive the car; in fact did not call at all. Suspecting something dishonest in the transaction, one of the appellees went to Dallas, and, without here detailing his investigation, concluded that Roy L. Kanaman, brother to appellant, was the man who made the purchase under the alias of J. F. Adams, and, learning that he was in the vicinity of Taylor, Tex., selling automobiles for appellant, went there that night in search of him, and finally found him in a store in a small town in the vicinity of Taylor. When the appellee entered the place where Roy L. Kanaman was, Kanaman, upon seeing appellee, hastily left the place. With the assistance of the local constable, Kanaman was again found, and, when charged with buying the car, and then refusing to accept it, he laughed and denied doing so, notwithstanding appellee recognized him as the same person who purchased the car from appellees. After ascertaining that Kanaman was the same person who purchased the car, appellees returned same to appellant, at Dallas, and demanded a return of their money. Appellant said, if he was sure his brother was the man who made the pretended purchase, he would return the money, and started to write appellees a check, but reconsidered and never did so. Appellees consulted an attorney, and subsequently filed this suit, and levied attachment upon the automobile, with the result stated at another place. The amount realized from the sale of the machine and the damages awarded against the sheriff aggregate $1,297.38.

In the exercise of an abundance of industry, counsel for appellant has asserted in various ways similar propositions of law under various assignments of error, and for that reason we shall discuss the issues as such, and omit a discussion seriatim of the assignments.

The first issue presented by appellant is that, there being no relationship of trust between the parties, nor any misrepresentation of the quality or value of the automobile sold, appellees were not entitled to rescission of the purchase contract. The facts in the record sustain the claim of an absence of trust relationship as well as any misrepresentation as to quality or value of the automobile. We think, however, that appellees were nevertheless entitled to rescission. Trust and confidential relations must not exist in every case to entitle the defrauded party to relief. As we understand it, such relation only liberalizes and extends the general rule and in effect abrogates and renders inapplicable as a defense in favor of the guilty party the rule of caveat emptor. In short, that the right to avoid contracts on the ground of...