McKinney v. Croan, A-522.
| Decision Date | 06 June 1945 |
| Docket Number | No. A-522.,A-522. |
| Parties | McKINNEY et al. v. CROAN. |
| Court | Texas Supreme Court |
J. Benton Morgan, of Greenville, for plaintiffs in error.
Thomas & Thomas and Clyde E. Thomas, all of Big Spring, for defendant in error.
This suit was brought by Bill Croan against C. W. McKinney and F. L. Young to recover the title and possession of an automobile truck. A judgment in favor of the defendants was reversed by the Court of Civil Appeals, and judgment rendered for the plaintiff. 185 S.W.2d 768.
The Court of Civil Appeals rendered judgment in favor of plaintiff because defendants failed to reply to plaintiff's request for admission of undisputed facts within the time required by Rule 169, Texas Rules of Civil Procedure. The pertinent facts on that issue are as follows: Plaintiff, who resided at Big Spring, sued defendants in Howard County on November 1, 1943. Defendants, on November 18, 1943, filed pleas of privilege to be sued in Hunt County, where they resided. These pleas of privilege were not controverted, and on December 29, 1943, they were sustained and the cause transferred to Hunt County. On December 14, 1943, plaintiff forwarded to defendants by mail a request for admissions under Rule 169. The request called for a reply within ten days. Defendants received the request on December 16th, and on December 27th deposited their reply in the mails at Greenville, in Hunt County. Plaintiff received the reply on December 29th. Upon the trial of the case plaintiff took the position that defendants' reply to the request for admissions was ineffective because not made in time. He objected to all evidence offered by defendants in contravention of defendants' implied admissions. The court overruled the objections and admitted defendants' evidence.
The plaintiff had the right to invoke the provision of Rule 169 at any time after defendants had filed their plea of privilege. Davis v. Battles, Tex.Sup., 186 S.W.2d 60.
Plaintiff's request for admissions was not received by defendants until December 16th. The ten days allowed for reply began to run the following day. The time for reply ordinarily would have expired on December 26th. However, that day was Sunday, and under Rule 4 defendants had until December 27th to reply. The reply was deposited in the mail on that day, but was not received by plaintiffs at Big Spring until December 29th. We hold that the reply was made in time. The parties resided about 350 miles apart. The plaintiff had forwarded his request by mail, and under a well-established rule, which is often applied in contracts, he impliedly requested a reply by mail, and the request was complied with when defendants deposited their reply in the mail properly stamped and addressed. Scottish-American Mortgage Co. v. Davis, 96 Tex. 504, 74 S.W. 17, 97 Am.St.Rep. 932; 10 Tex.Jur. 48; 17 C.J.S., Contracts, § 52, p. 403.
The reply was not under oath as required by Rule 169, but there are circumstances in the record indicating that plaintiff may have waived this defect. However, since, as hereinafter shown, the plaintiff was entitled to recover under the undisputed facts, independently of any implied admissions, we shall not discuss the question of waiver.
On the merits of the case, the findings of fact made by the trial court, supported by the undisputed evidence, show that on July 21, 1943, O. D. Odom, who owned the motor vehicle, sold and delivered it to Bill Croan and at the same time indorsed and delivered to him the certificate of title that had been issued to Odom by the State Highway Department under the provisions of the automobile "Certificate of Title Act." See Vernon's Penal Code, Art. 1436—1. The indorsement made by Odom on the back of the certificate of title was as follows:
"FOR VALUE RECEIVED I (WE) HEREBY SELL AND ASSIGN TO
_________________ ____________ __________ _________
Name of Purchaser Address City State
the motor vehicle described on the reverse side of this certificate and I
(we) hereby warrant the title of the said vehicle to be free of all liens
and encumbrances except as noted on the face of the title
Signature O. D. Odom Seller
Notary Seal
Before me this day personally appeared O. D. Odom who by me being
duly sworn upon oath says that the statements set forth above are true
and correct
Subscribed and sworn to before me this 21 day of July, 1943. Justin
Holmes, Notary Public, Howard County, Texas."
Croan was a dealer in used motor vehicles, and at his request the name of the purchaser was left blank in the assignment so that Croan could insert the name of a subsequent purchaser when he sold the vehicle. Croan put the vehicle on his sales lot at Big Spring, and the certificate of title in his safe. On August 18th, Clyde Linney, a laborer in Croan's employment, stole the vehicle and the certificate of title from Croan, and took them to Hunt County. On September 30th, Linney, for a valuable consideration, sold the vehicle to C. W. McKinney. F. L. Young advanced a part of the money to enable McKinney to buy the vehicle, and took a lien thereon from McKinney. At the time Linney delivered the certificate of title to McKinney he caused the words "C. W. McKinney, Greenville, Texas," to be written in the blank as the purchaser in the assignment that had theretofore been executed by Odom on July 21st. This was done in the presence of McKinney and Young. Neither McKinney nor Young knew that the vehicle had been stolen.
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