Meadows v. Bierschwale

• Decision Date: 09 October 1974
• Docket Number: No. B--4127,B--4127
• Citation: 16 UCCRep.Serv. 515,516 S.W.2d 125
• Parties: 16 UCC Rep.Serv. 515 James E. MEADOWS et al., Petitioners, v. Roy W. BIERSCHWALE et al., Respondents.
• Court: Texas Supreme Court

Page 125

516 S.W.2d 125

16 UCC Rep.Serv. 515

James E. MEADOWS et al., Petitioners, v. Roy W. BIERSCHWALE et al., Respondents.

No. B--4127.

Supreme Court of Texas.

Oct. 9, 1974.

Rehearing Denied Dec. 18, 1974.

Vinson, Elkins, Searls, Connaly & Smith, James Greenwood, III, James R. Tucker, Jamail & Gano, John Gano, T. D. Smith, Houston, for petitioners.

Schlanger, Cook & Cohn, Joel W. Cook, Butler, Binion, Rice Cook & Knapp, Jonathan Butler, Binion, Rice, Cook & Knapp, Jonathan

SAM D. JOHNSON, Justice.

Roy W. Bierschwale, Weldon E. Countryman and Eli David Philley (hereinafter referred to collectively as Bierschwale) filed suit against Herbert C. Oakes and United Properties, Inc. (hereinafter referred to as Oakes) to rescind a transaction whereby Bierschwale sold an apartment complex to Oakes in return for fifty-nine promissory notes payable to Oakes and executed by James H. Shoffner, William E. Goyen, Jr. and Louis R. Daivs (the Black Hardware notes). The facts are detailed in the court of civil appeals opinion and will be restated here only insofar as is necessary to clarify the issues before this court.

Oakes transferred the apartment complex to United Properties, Inc., a corporation wholly owned by Oakes, and United Properties in turn transferred the property to Eugene J. Goldman, a bona fide purchaser. The consideration for the Goldman transfer was $40,000 in cash plus twenty-four notes; twenty-three in the principal amount of $4,000 and a final note in the principal amount of $1,879.10 (the Goldman notes).

James E. Meadows, a real estate broker, and Continental Mortgage and Realty of Houston, Inc., a corporation owned by Meadows (hereinafter referred to as Meadows), were responsible for bringing Oakes and Bierschwale together. Meadows represented Bierschwale, the seller, in the transaction. At Bierschwale's request, Oakes transferred twelve of the fifty-nine notes due Bierschwale to Meadows. This transfer was made pursuant to an agreement between Bierschwale and Meadows that Meadows would accept the notes, rather than cash, as his sales commission.

Only two payments on the fifty-nine Black Hardware notes were made. The history of these notes is traced in detail in the court of civil appeals opinion. For our purposes it is sufficient to say that the Black Hardware notes were worthless.

Bierschwale filed this suit on August 15, 1967, seeking to rescind the original transaction and to impress a constructive trust on the proceeds of the Goldman sale. Meadows intervened. Bierschwale and Meadows alleged that Oakes made material misrepresentations concerning the Black Hardware notes. On March 4, 1968 Oakes pledged numbers one through seven of the Goldman notes to Joe E. Counts, Marion E. Ford, Milford Frnka and T. D. Smith, Trustee, (hereinafter referred to as Smith) as security for a prior obligation. It is undisputed that Smith is a holder in due course. On May 27, 1968 the trial court ordered Goldman to make all future payments on the notes into the registry of the court. On June 1, 1970 Oakes defaulted on his prior obligation to Smith.

The trial court, after disregarding certain issues, entered judgment on the verdict and, on the basis of Oakes' fraud, rescinded the transaction, gave Meadows a judgment in the sum of $23,280 against Oakes, and awarded Bierschwale and Meadows a constructive trust on the proceeds of the Goldman sale. In addition, the trial court gave Bierschwale a cash judgment equal to the amount of the cash proceeds from the Goldman sale. All of the proceeds from notes one through seven were awarded to Smith. On appeal to the court of civil appeals the fraud judgment against Oakes was affirmed, Meadows' recovery was reduced from $23,280 to $14,260, and Meadows was denied a share in the constructive trust res. ¹ That court also limited Smith's award to the proceeds which had accumulated subsequent to June 1, 1970; all payments made prior to June 1 were awarded to Bierschwale. 497 S.W.2d 506.

Oakes, Meadows and Smith have all appealed from the judgment of the court of civil appeals and in the interest of clarity their arguments will be discussed separately.

APPEAL OF OAKES

Oakes' first contention is that a constructive trust requiring the defendant to account for profits is an appropriate remedy only when breach of a fiduciary relationship is involved. This is clearly erroneous. '(T)he circumstances which give rise to a constructive trust may or may not involve a fiduciary relationship.' Restatement of Restitution § 160, Comment A at 641. It is not essential for the application of the constructive trust doctrine that a fiduciary relationship exist between the wrongdoer and the beneficial owner. Actual fraud, as well as breach of a confidential relationship, justifies the imposition of a constructive trust. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App.--Houston (14th Dist.) 1971, writ ref'd n.r.e.).

Some confusion may have arisen from the following language in this court's opinion in Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333, 336 (Tex.1966):

'Our holdings above cited are to the effect that for a constructive trust to arise there must be a fiduciary relationship before, and apart from, the agreement made the basis of the suit. Such is our holding here. As stated, the fact that one businessman trusts another, and relies upon his promise to carry out a contract, does not create a constructive trust. To hold otherwise would render the Statute of Frauds meaningless.'

This language must be viewed in the context of the fact situation that gave rise to it. Thompson was a suit to enforce an oral agreement to execute an assignment of an overriding royalty on an oil and gas lease. No actual fraud was pleaded or proved. This court has imposed stringent prerequisites to the enforcement of oral agreements like the one in Thompson to avoid aborgating the Statute of Frauds and the Texas Trust Act. ² Similar considerations do not exist in the instant case since it is a suit for rescission because of fraud, not an attempt to enforce an oral agreement to convey property.

Bearing in mind that Oakes procured the apartment complex from Bierschwale by fraud, Bierschwale would have, but for the sale to Goldman, been entitled to the imposition of a constructive trust on the apartment complex. It follows that Bierschwale is entitled to a constructive trust on the Proceeds of the sale of the apartment complex to Goldman; these proceeds include any profit Oakes made on the sale to Goldman. Fidelity & Deposit Co. of Maryland v. Wiseman, 103 Tex. 286, 124 S.W. 621 (1910); Alexander v. Harris, 254 S.W. 146 (Tex.Civ.App.--Fort Worth 1923, writ ref'd); Smith v. Green, 243 S.W. 1006 (Tex.Civ.App.--Amarillo 1922, writ ref'd); Restatement of Restitution §§ 160, 202. Restatement of Restitution, Section 202, at 818, deals with the imposition of a constructive trust on the proceeds from the disposition of property wrongfully acquired and states:

'Where a person wrongfully disposes of property of another knowing that the disposition is wrongful and acquires in exchange other property, the other is entitled at his option to enforce either

'(a) a constructive trust of the property so acquired, or

'(b) an equitable lien upon it to secure his claim for reimbursement from the wrongdoer.'

The Restatement also speaks to the recovery of profits:

Section 1, Comment E at 14:

'. . . where a person with knowledge of the facts wrongfully disposes of the property of another and makes a profit thereby, he is accountable for the profit and not merely for the value of the property of the other with which he wrongfully dealt.'

Section 160, Comment D at 644:

'. . . where the defendant makes a profit through the consciously wrongful disposition of the plaintiff's property, he can be compelled to surrender the profit to the plaintiff and not merely to restore to the plaintiff his property or its value.'

Oakes next argues that any constructive trust which is imposed should be limited to specifically traceable property and that Bierschwale is not entitled to a money judgment equal to the balance of the proceeds from the Goldman sale. We agree that a constructive trust on unidentifiable cash proceeds is inappropriate. Even so, the award of a cash judgment to fully compensate Bierschwale is within the equitable powers of the court. See Restatement of Restitution § 160, Comment D at 644.

Several points brought forward by Oakes deal with the Texas Securities Act. Section C of Article 581--5, Vernon's Texas Revised Civil Statutes Annotated, provides an exemption from the Act if, among other things, the 'sales are isolated transactions not made in the course of repeated and successive transactions of a like character; . . .' The jury failed to find that the transfer of the notes was an isolated transaction not made in the course of repeated transactions of a like character. Oakes contends there was no evidence of probative force to support the submission of this issue. In addition, Oakes takes issue with the court of civil appeals' analysis of Article 581--33A of the Act. Section 33A states that the seller 'is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid . . ..' Oakes argues that damages are limited by Section 33A to the value of the consideration Bierschwale gave for the Black Hardware notes and does not include any profit that Oakes made on the subsequent transfer of the apartment complex to Goldman. Since the fraud findings of the jury fully justify awarding the proceeds of the Goldman sale to Bierschwale, this court specifically declines to rule on Oakes' points dealing with the Texas Securities Act.

When the case was submitted to...