National Finance Co. v. Fregia, 2612.

Citation78 S.W.2d 1081
Decision Date06 February 1935
Docket NumberNo. 2612.,2612.
PartiesNATIONAL FINANCE CO. v. FREGIA.
CourtCourt of Appeals of Texas

Appeal from Jefferson County Court; W. S. Nichols, Judge.

Action by Lester Fregia against the National Finance Company. From judgment in favor of plaintiff, defendant appeals.

Affirmed.

Crook, Lefler & Cunningham, of Beaumont, for appellant.

John T. Kitching, of Beaumont, for appellee.

COMBS, Justice.

This appeal is from a judgment of the county court of Jefferson county at law, wherein appellee, Lester Fregia, as plaintiff, recovered judgment against appellant, National Finance Company, as defendant, for $125 actual damages and $350 exemplary damages, for the wrongful conversion and sale of an automobile truck belonging to appellee. For convenience we will designate the parties as in the trial court.

On February 20, 1933, plaintiff borrowed $25 from one R. W. Carpenter and gave his chattel mortgage note payable to Carpenter for $30. The note was payable in two monthly installments of $15 each. The mortgage covered an International automobile truck and in addition to securing the $30 note, also, by its terms, secured "any other indebtedness for which the undersigned (mortgagor) may be or become liable to mortgagee herein." The mortgage provided for sale of the mortgaged property without notice in the event of default. At the time of the transaction plaintiff delivered the truck to Carpenter for the purpose, as testified by Mr. Carpenter, of better securing the loan and also that Carpenter might sell the truck for plaintiff. A day or two after the transaction, Carpenter assigned the note and mortgage to defendant, National Finance Company, and it may be inferred, although it is not specifically shown delivered the truck to the defendant. The first installment of the note was not paid when due, but on April 16, 1933, four days before the maturity of the last installment, plaintiff's wife came to Beaumont for the purpose of paying the indebtedness and repossessing the truck. According to her testimony, she saw Mr. L. Toplitz, president and general manager of the defendant company, and he declined to receive the payment, stating that the truck had already been sold. At that time the plaintiff was sick in the hospital in Houston. It is shown that the truck had not been sold, but at that time was still in the possession of the defendant. On April 21, 1933, the day after the maturity of the last installment, Mr. Toplitz, acting for his company, sold the truck to one H. T. Welborn for $80. In order to make transfer of the legal title into the defendant finance company, Mr. Toplitz, on behalf of the defendant company, made and filed with the tax collector of Jefferson county an affidavit to the effect that said National Finance Company was legal owner and holder of the truck, and further that it was unable to locate the proper vendor, Lester Fregia. On the same day the defendant, acting by L. Toplitz, executed a bill of sale to the truck to H. T. Welborn and, as the evidence shows, delivered the truck to Welborn.

In response to several special issues, the jury found facts establishing that the defendant did wrongfully convert plaintiff's truck. The jury also found that the defendant was actuated by malice. It fixed the value of the truck so converted at $125 and assessed exemplary...

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7 cases
  • Boelens v. Redman Homes, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 20, 1984
    ...the award of exemplary damages". "[T]he exemplary damages are allowed not for the breach but for the tort." National Finance Co. v. Fregia, 78 S.W.2d 1081, 1082 (Tex.Civ.App.1935). For example, in Koenning v. Manco Corp., 521 S.W.2d 691 (Tex.Civ.App.1975), the plaintiff claimed that the def......
  • McDonough v. Zamora
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • July 20, 1960
    ...was a conversion of property. In Graham v. Roder, 5 Tex. 141, the 'gist' of the action was fraud and deceit. In National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081, there was a conversion of a vehicle. Accord, Hankey v. Employers' Casualty Co., Tex.Civ.App., 176 S.W.2d 357; Wright ......
  • Wood v. Parker Square State Bank, A-10867
    • United States
    • Supreme Court of Texas
    • March 23, 1966
    ...which was reasonably within the contemplation of the parties to the mortgage at the time it was made. See National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081 (writ dis.); Republic Bank of Dallas v. Zesmer, Tex.Civ.App., 187 S.W.2d 227 (no writ); 15 Am.Jur.2d Chattel Mortgages § 80;......
  • Magnum Mach. & Tool Corp. v. 1st Nat. Bank of Seguin
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • December 23, 1976
    ...which was reasonably within the contemplation of the parties to the mortgage at the time it was made. See National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081 (writ dis.); Republic Nat. Bank of Dallas v. Zesmer, Tex.Civ.App., 187 S.W.2d 227 (no writ); 15 Am.Jur.2d Chattel Mortgages ......
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