Oltmanns Bros. v. Poland

• Decision Date: 29 November 1911
• Citation: 142 S.W. 653
• Parties: OLTMANNS BROS. v. POLAND.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

142 S.W. 653

OLTMANNS BROS. v. POLAND.^†

Court of Civil Appeals of Texas. Austin.

November 29, 1911.

Rehearing Denied January 10, 1912.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Action by C. S. Poland against Oltmanns Bros. Judgment for plaintiff, and defendants appeal. Affirmed in part, and reversed and rendered in part.

Wm. J. Berne, for appellants. Stennis & Wilson, for appellee.

Findings of Fact.

JENKINS, J.

The trial court submitted this case upon special issues, and from the verdict of the jury on said issues, and from the evidence as contained in the record, we make the following findings of fact: Oltmanns Bros. of Watseka, Ill., were dealers in imported stallions. They had a stable at Ft. Worth, Tex., and J. A. Hill was in charge of their Texas business at said place. It was his custom to employ agents to take horses out for sale, they paying all expenses and receiving as compensation a portion of the proceeds of sale made by them, usually about one-half. R. R. Kincannon was employed as such salesman, and had sold several stallions for Oltmanns Bros. He took the imported German coach stallion Theodore to Weatherford for the purpose of selling him. The evidence leaves it uncertain as to whether Theodore at this time was the property of Oltmanns Bros. or of Kincannon, in this: Kincannon testified that Oltmanns Bros. had made a contract with him, through Hill, to sell two stallions, and that, if he sold the first one at the price fixed by Hill, he was to turn over all of the proceeds of such sale to Hill, and was to have all of the proceeds of the sale of Theodore as his compensation. Hill testified that for services rendered by Kincannon in the sale of a former stallion, and for the surrender of a note for $750 received by Kincannon on said sale, he sold Theodore to Kincannon. As we understand the case, it is immaterial which of these theories is correct as to the ownership of said horse, inasmuch as the undisputed facts show that Hill authorized Kincannon to sell Theodore as the property of Oltmanns Bros. and to give to the purchaser a guaranty from Oltmanns Bros. as hereinafter set out, so that, in either event, so far as Poland is concerned, Kincannon was the agent of Oltmanns Bros. for the sale of this horse. Kincannon stated to Poland that the price for a horse of this character was $3,000, which was true; but that on account of a slight defect in the horse's ankle, and on account of his previous dealings with Oltmanns Bros., they had consented for him to sell this horse for $2,700, and that if Poland would purchase a half interest in said horse, and execute his notes therefor for $1,350, with his aunt as security, he, Kincannon, would purchase the other half interest, and give his father as security on his note. Poland accepted this proposition, and executed the notes. Kincannon did not execute any notes for the reason either that the horse was his or that he was entitled to all the proceeds of said sale. Poland's notes were made payable to Oltmanns Bros., and were indorsed by them, without recourse, to Kincannon, who thereafter sold them before they were due, and Poland has paid said notes, and brings this suit against Oltmanns Bros. and R. R. Kincannon to recover the amount that he has paid on said notes, with interest thereon, upon the ground that the warranty to said horse has failed, and upon the further ground that he was induced to purchase said horse by the fraudulent misrepresentations made by Kincannon, and that said Kincannon was acting therein as the agent of Oltmanns Bros. Kincannon, as the agent of Oltmanns Bros., was authorized to give the following warranty: "Ft. Worth, Texas and Watseka, Ill. Feb. ___, 1907. Guaranty on the imported German coach stallion `Theodore,' No. 2419. We have this day sold the imported German coach stallion, named `Theodore,' No. 2419 to the ____ Horse Improvement Company of ____, Texas, and we guarantee said stallion to be a satisfactory and sure breeder, provided he has the proper care and exercise. If the said stallion fails to be satisfactory and a sure breeder with the above treatment, we agree to take the said stallion back and give to the said company another stallion of equal value, provided he is returned to us at our barns in as sound and healthy condition as he is now by April 1st, 1908. [Signed] Oltmanns Bros." Kincannon was not the agent of Oltmanns Bros. for the purpose of representing himself as a joint purchaser of said horse, and it does not appear that Oltmanns Bros. knew such to be the fact.

The jury in response to a special issue submitted by the court found that said horse was not a satisfactory and sure breeder, and further found that he had proper care and exercise. There is sufficient evidence to sustain this finding, aside from the hearsay evidence of the witness Hale, but we cannot say that the jury would have made such finding but for such hearsay evidence, as the same is very material, and the evidence upon this point, outside of the testimony of the witness Hale, is rather meager. Under an agreement between Poland and Kincannon, Poland was to keep the horse for the season of 1907, and Kincannon was to keep him for the season of 1908. Poland turned the horse over to Hale during the months of April, May, and part of June. Hale appears to have been a competent party for such purpose, and to have given the horse proper treatment. Poland himself bred the horse to only seven mares. Hale bred him to sixteen, and it does not appear that any other mares were bred to him during said season. Poland in the fall of 1907 turned the horse over to Kincannon, telling him that he was not a satisfactory breeder, and that he wanted his money back. Kincannon called Poland's attention to the guaranty, and stated that, if the horse was not a satisfactory breeder, they could get another one. Kincannon did not promise to return the horse to Oltmanns Bros., and the horse was never returned to them by either Poland or Kincannon.

There was a judgment against Oltmanns Bros. and against Kincannon for the amount sued for, from which judgment Oltmanns Bros. have appealed.

Opinion.

1. The witness Hale testified by deposition only. His depositions were twice taken in this case — first, by the plaintiff, and about six months thereafter by defendant. In the first deposition Hale stated, in substance, that he had bred said horse to sixteen mares, and that only four of them brought colts, and further testified that he did not consider said horse a sure and satisfactory breeder. This opinion was based upon the fact, as stated by him, that only four out of sixteen mares bred to said horse brought colts. In the subsequent deposition Hale stated that he knew nothing of his own knowledge as to how many mares bred to said horse brought colts, that all he knew about the matter was that four of the owners of said mares had paid for colts, and that the remainder reported that their mares had not brought colts. The mares were bred upon condition that the service should be paid for provided the mares were foaled by said horse. When the first deposition of the witness Hale was offered by plaintiff, the defendant objected upon the ground that his statements therein with reference to the number of mares bringing colts were hearsay, and in support of said statement, and for that purpose only, read to the court the second deposition...