Kimbell Milling Co. v. Greene, 14380.

• Decision Date: 08 May 1942
• Docket Number: No. 14380.,14380.
• Citation: 162 S.W.2d 991
• Parties: KIMBELL MILLING CO. v. GREENE.
• Court: Texas Court of Appeals

162 S.W.2d 991

KIMBELL MILLING CO. v. GREENE.

No. 14380.

Court of Civil Appeals of Texas. Fort Worth.

May 8, 1942.

Rehearing Denied June 19, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by A. S. Greene against Kimbell Milling Company and another for the value of wheat allegedly converted by the defendants. Trial to the court resulted in a judgment in favor of plaintiff, and the named defendant appeals.

Judgment affirmed.

Charles Kassel and Melvin Adler, both of Fort Worth, for appellant.

A. B. Curtis and H.D. Payne, both of Fort Worth, for appellee.

SPEER, Justice.

A. S. Greene sued Joe F. Boothe, of Floyd County, Texas, and Kimbell Milling Company, a corporation, in a district court of Tarrant County, for the value of wheat alleged to have been converted by the defendants, during the year 1937.

Greene's suit was based upon allegations that he and several other parties, whose claims had been assigned to him, stored wheat with Boothe during 1937, and that without the knowledge or consent of the owners, Boothe had sold or in some manner transferred said wheat to Kimbell Milling Company, to which company we shall refer as Kimbell.

The case was tried to the court, without a jury. Judgment was entered in favor of Greene for the value of 11,050 bushels of wheat at the stipulated price of $1.04 per bushel. Kimbell alone has appealed.

Some of the material uncontroverted facts in this case are: A. S. Greene, the plaintiff, and four or five persons from whom he took assignments of claims were grain raisers in Floyd County, during 1937, and had been for several years prior thereto. Joe F. Boothe had operated an elevator at Floydada for about 15 years. In 1935 he incorporated his business and he, his son and a brother owned the stock, until in 1936, when a small block was sold to a man in Dallas, Texas. Boothe was president and general manager of the corporation, called "Boothe Mill & Elevator, Inc.". Greene knew nothing of the corporation, but dealt with Boothe during 1937 in all matters in controversy. Boothe's elevator had a capacity of 10,000 or 11,000 bushels. When grain was received from the grower, a truck would be backed up to a chute and dumped. The grain fell to a lower level known as the truck pit, and by means of machinery was elevated. There were six separate bins for grain, and it could be elevated from the truck pits to either bin. A railroad track ran on two sides of the elevator and all shipments made by Boothe were loaded out into cars on these tracks. There was at least one other elevator in Floydada, located just across the street from Boothe's. There were other elevators in smaller towns of the county, within a radius of the area in which Greene and his assignors grew their grain. Boothe nor his successor, the corporation, never qualified as a public bonded warehouseman. No warehouseman's receipt was ever issued by Boothe to those who left grain in his elevator. He issued a scale ticket bearing the name of the hauler, the owner, amount of grain received and signed by him. If grain was not purchased by him, he initialed the receipt with an "S" or "St." and retained a carbon copy. The initial indicated to him that the grain had not been purchased by him. Some parts of the testimony indicate that the initial meant "stored".

There are certain stipulations in the record, many of which refer to what certain witnesses would testify, but few were admitted by both parties as facts. We can only take them as controverted facts and look to the judgment entered to ascertain which theory was adopted by the court.

One of such stipulations which we think pertinent is, in substance, that during the year 1937, and for several years prior thereto, there was a general custom in the grain area including Floyd County, where small elevators were located and insufficient storage capacity was available to take care of the grain crop in the area, the small elevators would ship out the grain to large terminal elevators on the basis of either outright sale, or on storage, and in the case of storage, subject to advances made to the small elevators against the grain and to the absorption of the grain by the terminal elevator when such advancements, storage and other proper charges equaled the value of the grain. The stipulation, however, was qualified by additional statements to the effect that neither Greene nor his assignors knew of such general custom at the time they stored their grain with Boothe.

Kimbell (appellant) urges several points of error for reversal. Nine of the fifteen points presented are urged to show that judgment should have been entered for Kimbell and not for Greene, as was done. These are presented in points 2, 4, 5, 6, 7, 9, 10, 12, and 15. Their contents will be reflected by the following summary: (a) Since Boothe had an option to buy the wheat when Greene desired to sell, the deposit was a sale and not a bailment, and Kimbell being an innocent purchaser, got title under his dealings with Boothe. (b) Dealings between Greene and Boothe constituted Boothe the agent of Greene, with apparent authority to sell the wheat and Kimbell, having purchased without notice of anything to the contrary, got the title. (c) Possession having passed to Boothe with apparent power to sell, a secret agreement between Boothe and Greene that the wheat should remain the property of Greene was not binding on Kimbell, who without notice thereof purchased from Boothe. (d) Greene took from Boothe advancements made by Kimbell on the wheat, under general customs of trade, and Kimbell being an innocent purchaser, should have had judgment. (e) Under the general custom practiced in that area, Boothe had a right to ship the wheat out to Kimbell as he did, and when advances made to Boothe by Kimbell, storage and other proper charges, absorbed the value of the wheat, Kimbell acquired good title and should have recovered judgment. (f) Boothe's elevator being too small to accommodate the storage of all grain in the area, and wheat being subject to damage and of a perishable nature, Boothe had a right to ship it to a large terminal elevator and sell it, under the custom of the country, to prevent loss and deterioration: having done so, and Kimbell having no knowledge of any secret contract made by Boothe with Greene, acquired good title and should have recorded judgment. And (g) Greene dealt with Boothe individually and not the corporation, and Kimbell acquired title from the corporation; therefore Kimbell should have prevailed.

No findings of fact were filed by the trial court and none are recited in the judgment. Most, if not all, the facts bearing upon the points urged by Kimbell for reversal, although supported by substantial testimony, are denied and controverted by Greene and his assignors; the judgment being in favor of Greene, it must follow that the court believed the theory of Greene. It would unnecessarily extend this opinion to quote the testimony even upon the most highly controverted points. But whether or not Greene and his assignors deposited their wheat with Boothe in the ordinary course of business as it was customarily done, in the manner relied upon by Kimbell, or whether it was deposited under special contracts differing from the general custom, we think are controlling in the disposition to be made of this appeal.

Greene and his assignors said they had done business with Boothe for several years in the past; had sold him wheat and had left it there to be sold at a later date when the market price suited them; they dealt with Joe F. Boothe and knew nothing about his business being incorporated. In previous years they had hauled their wheat to Boothe's elevator, unloaded it and when they had finished hauling the crop, would go in to town and tell Boothe that they wanted to sell all or a designated amount at the prevailing price and wanted to hold the remainder for better prices; any time in the future they desired to do so they would ascertain if Boothe would give them as much for the wheat as any else and if so, they sold it to him; Boothe had always paid them the prevailing price when they desired to sell, but if he had not they always believed they could have sold to some one else Boothe was not obligated to buy their wheat; all he would have to say was that he would not pay the price they asked or did not want to buy; they had no agreements with him to give him an option over others to buy, but because he had never charged storage they had sold to him at the prevailing market price. A very large grain crop was grown in Floyd County in 1937; all the granaries and elevators in the county would not contain the yield at one time. They knew that many were selling their grain and that Boothe was shipping out; they did not know that any other persons were storing their grain with Boothe as they were. Boothe had told them his elevator was of 16,000 bushels capacity and that he would store their grain without charges; that these were special arrangements made that year, unlike any they had ever had with him in previous years. While it was not definitely stated that their wheat would not be mixed with that of any other person, they understood from Boothe that he had sufficient space to store their grain separately and would hold it subject to their calls or orders; they did not examine the inside of the elevator, but knew it had separate bins, and that when grain was dumped into the same pit by owners, the elevator chains and cups carried the grain up and emptied it into different bins. That under their arrangements with Boothe, if they chose to do so, they could go there and get their wheat for planting or any other purpose they desired to use it; none of the parties whose interest Greene represented ever authorized Boothe to ship their wheat out, and did not know he had done so until after he failed in business. They had not authorized Boothe to...