McVea v. Verkins

• Decision Date: 30 August 1979
• Docket Number: No. 1447,1447
• Citation: 587 S.W.2d 526
• Parties: Robert McVEA, Appellant, v. Billy VERKINS et al., Appellees.
• Court: Texas Court of Appeals

Page 526

587 S.W.2d 526

Robert McVEA, Appellant, v. Billy VERKINS et al., Appellees.

No. 1447.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 30, 1979.

Ralph Brown and Michael W. Bahan, San Antonio, for appellant.

Gerald M. Birnberg, Michael A. Maness, Houston, for appellees.

OPINION

BISSETT, Justice.

This is a suit filed by Robert McVea against Billy Verkins and Melvin Powers on January 3, 1978, to recover damages for an alleged conversion of cattle. It was stipulated that the defendants were entitled to an offset of $9,607.93 against any judgment that might be rendered against them for money previously paid by them to a bank for the benefit of McVea and the bank. Following a jury trial, judgment was rendered on October 2, 1978, that the plaintiff McVea recover nothing against the defendants Verkins and Powers. McVea has appealed. The plaintiff-appellant will be referred to by name, and the defendants-appellees will be referred to as "defendants" or by name.

On November 7, 1977, the date of the alleged conversion, McVea, as lessee, was in possession of a 479 acre tract of land under a written lease with Powers, as lessor. The jury, insofar as the disposition of this appeal is concerned, found that on November 7, 1977, 80 cows, 30 calves and 2 bulls owned by McVea were on the 479 acres; that there was no conversion of the cattle; that the acts of defendants were not malicious; and that the "fair market value" of the cattle on that date was $17,787.59.

McVea contends that a conversion of the said cattle on November 7, 1977, was established as a matter of law. He attacks the finding relating to "fair market value" with a "no evidence" point, a "factually insufficient evidence" point and "an against the great weight and preponderance of the evidence" point. We, therefore, have read the record in its entirety and dispose of this appeal in accordance with the guidelines set out in Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 359 (1960). We first determine whether there was a conversion as a matter of law.

The defendants contend that there was no conversion as a result of Verkins' acts on November 7, 1977, because: 1) they had a right to possess the cattle pursuant to a valid agister's lien under Tex.Rev.Civ.Stat.Ann. art. 5502 (1958); 2) their conduct did not exclude the exercise of any rights by McVea with respect to the cattle; 3) they originally came into possession of the cattle with McVea's consent; 4) they had a right to possess the cattle pursuant to a valid landlord's lien on the cattle; 5) Verkins' action on November 7, 1977, was justified in order to secure a reasonable time to investigate the rights of the parties; 6) they were reasonably exercising, in good faith, a distinct legal right to protect timber on the leased premises from imminent destruction by McVea; and, 7) McVea did not demand that they surrender possession of the cattle to him. We do not agree.

A written lease, for grazing purposes only, covering a tract of 479 acres of land in Gonzales County, Texas, effective November 1, 1976, was executed by and between Powers, as lessor, and McVea, as lessee. The lease was for a term of 4 years, commencing November 1, 1976, and provided for a rental of $1,920.00 per year, payable annually in advance. The lease contained the following express covenants:

"5. LESSEE'S COVENANTS: Lessee covenants to Lessor as follows:

(a) That he will well and punctually pay rents as herein required and quietly surrender the premises unto Lessor on the day of expiration hereof in as good condition as the same were when received, reasonable wear and tear being excepted.

(b) That he will use said premises for grazing of livestock only and for no other purpose.

(c) That he will not put improvements or cross fences upon the premises without the prior written consent of Lessor.

(d) That on failure to pay the rent in advance, as aforesaid, or to comply with covenant herein made, Lessor may pursue any of the remedies provided by law and Lessor, his agent or attorney shall have the right and power to enter upon and hold, occupy and take possession of the leased premises. In this connection, it is agreed that Lessor shall have a landlord's lien upon all personal property of Lessor (sic) placed upon such premises to secure Lessee's performance hereunder."

McVea went into possession of the 479 acre tract on or about November 1, 1976, and stocked the pasture with cattle. He paid the first year's rental contemporaneously with the signing of the lease. He did not pay the advance annual rental on November 1, 1977, when it became due.

On October 16, 1977, Verkins, who was Powers' "property manager," learned that wood was being cut on the leased premises. He attempted to contact McVea but was unsuccessful. He did, however, reach "someone" at the McVea residence in response to a telephone call which he made on October 18, 1977. He said that he told that person: "Please tell Mr. McVea to stop the timber cutting."

A day or so before the day of the alleged conversion of the cattle on November 7, 1977, Verkins was notified that a considerable number of trees had been cut on the leased premises. Verkins then left his office in Houston, Texas, and went to the pasture. On arrival, he said that he found several places where large quantities of freshly-cut wood had been stacked. He concluded that McVea was responsible. He said that it was apparent to him that there would be additional woodcutting and more wood removed from the premises unless something was done. He purchased new locks and chains and installed them on all exterior gates to the pasture. Following the changing of the locks, he proceeded to Gonzales, Texas, and filed a criminal complaint against McVea, which charged the latter with felony theft. Later on during the day, he located McVea at a barbeque stand and engaged him in conversation. According to Verkins, he asked McVea why "he was continuing to cut wood on the property." He said that McVea told him he "was cutting the wood for barbequing." Verkins then informed McVea that he had filed a criminal complaint against him earlier in the day. Concerning the leased premises, Verkins told the jury: "I told him not to go on the property . . . I would be in contact with him within three days or for him to contact me within three days"; and to "please call me and let's get this resolved but, I don't know what to do about it right now without legal counsel." Concerning the cattle, Verkins testified that he told McVea: "We will notify you about getting your cattle out." McVea testified that Verkins "told me don't do anything with the cattle until I had heard from him."

McVea's account of the conversation was different. He denied that he ever cut any wood on the leased premises. He testified that Verkins accused him of destroying trees on the property, that Verkins said to him: "Do not go on my premises anymore." McVea then told the jury: "I offered to pay him his rent. He said: 'As of this moment, your lease is cancelled and do not go on my premises anymore until I let you know' . . . that if I was caught on there, I would be shot.' "

At the trial while being cross examined, Verkins denied that McVea offered to pay the past due rent or that he told McVea that his lease had been terminated. However, the record shows that requests for admissions were served on Verkins on June 2, 1978, and that he made no response thereto. On the opening day of trial (August 14, 1978), the trial judge ordered that the facts inquired about in McVea's requests for admissions be "deemed admitted as true and correct." Included in the requests was "admission three," which requested that Verkins admit or deny that on the date of the alleged conversion "you informed Plaintiff that his lease was terminated."

Upon returning to Houston, Verkins contacted Powers' lawyer and told him of the events which occurred on November 7, 1977. By letter dated November 9, 1977, which was prepared by Powers' lawyer, Powers notified McVea that he was in breach of the lease in two respects: 1) by cutting timber on the property which constituted an unlawful taking of property; and 2) by failing to timely pay the annual rental of $1,920.00, which was due on November 1, 1977. The letter also stated:

"You are further notified that the Landlord's Lien upon all personal property as granted in Section V Lessor's (sic) Covenants is hereby affected and that formal demand is made upon you for the amount of rent past due; and you are further notified that all right, title and interest you have in and to the premises is hereby terminated because of your breach; and you are further notified that any attempt to enter in and upon the property shall be termed trespassing upon said premises."

McVea received the letter on November 10, 1977.

The only express covenants to be performed by the lessee (McVea) in the lease contract are those which appear in Section V thereof, heretofore copied verbatim. There is no express covenant which prohibited McVea from cutting timber, although there is such an implied covenant when the contract as a whole is examined. While the lease does not contain an express forfeiture clause, the clear implication of the language in V(d) thereof is that the lease will be forfeited upon the "failure to pay the rent" in advance . . . or to comply with any covenant Herein made." It can be argued that such language limits the right to terminate the lease (a forfeiture) to a breach of Express covenants. Be that as it may, there is no provision in the lease which permits the lessor, upon breach of covenant by the lessee, to take possession of the lessee's personal property on the premises. Cf. Harris v. Panhandle & S. F. Ry. Co., 163 S.W.2d 647 (Tex.Civ.App. El Paso 1942, writ ref'd w. o. m.)

It was said in Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex.Sup.1971):

" . . . To constitute a conversion, it is...