Presley v. Wilson

• Decision Date: 28 January 1939
• Docket Number: No. 12556.,12556.
• Parties: PRESLEY v. WILSON.
• Court: Texas Court of Appeals

125 S.W.2d 654

PRESLEY v. WILSON.

No. 12556.

Court of Civil Appeals of Texas. Dallas.

January 28, 1939.

Rehearing Denied February 18, 1939.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by B. F. Wilson against J. Earl Presley to recover actual and exemplary damages by reason of unlawful and malicious conduct of defendant in exacting usurious interest and other unlawful charges for the use of money borrowed and for the conversion of plaintiff's automobile as a result thereof. Judgment for plaintiff for $370, and defendant appeals.

Affirmed.

Nathaniel Jacks, of Dallas, for appellant.

Geo. Clifton Edwards, of Dallas, for appellee.

BOND, Chief Justice.

Appellee, as plaintiff in the court below, instituted this suit in a district court of Dallas County against appellant, as defendant, claiming actual and exemplary damages by reason of unlawful and malicious conduct of the defendant in exacting usurious interest and other unlawful charges for the use of money borrowed, and for the conversion of his automobile as the result thereof.

A trial was had to a jury, and, on findings that the defendant, prompted by malice toward the plaintiff, unlawfully converted plaintiff's automobile; that its reasonable cash market value at the time of the conversion was $170, and that $200 was fixed as exemplary damages, the trial court entered judgment in favor of plaintiff for the sum of $370, less the sum of $28.50 admittedly due and unpaid by plaintiff to defendant on the transaction involved in the suit.

The uncontradicted evidence shows that, on or about May 9, 1936, plaintiff (whose name is Abner O. Wilson), under the assumed name of B. F. Wilson (B. F. Wilson being the name of his father), borrowed from defendant, J. Earl Presley, the sum of $60, and, as evidence thereof, executed a note in the sum of $92, due and payable in installments of $3 per week, which, according to its terms, was to run for an average period of less than three months. To secure the payment of said note, plaintiff executed a chattel mortgage to the defendant on his automobile, signing his name thereto as "B. F. Wilson". The mortgage recited the usual terms and conditions incident to such instrument, especially important here, that in case default be made in the payment of said debt or interest, or any installment of said note, the whole amount remaining unpaid, shall at once become due and payable, and said mortgagee may, without notice, foreclose the mortgage by court action or otherwise, and, out of the proceeds of sale, pay the cost of foreclosing and the expense of pursuing, taking, keeping, advertising, and selling said goods and chattels. The evidence shows that, at the time plaintiff secured the loan and executed the note and mortgage, he told defendant his true name —Abner O. Wilson—and gave reasons for the transaction to be conducted in name of B. F. Wilson instead of his own.

During the period of liquidation, plaintiff paid thirteen installments of the note, the defendant receipting him therefor, making out the receipts in the name of "B. F. Wilson"; and, at the time of the alleged conversion, plaintiff tendered payment of the balance due under the terms of the note and mortgage, which tender, defendant refused, resulting in the appropriation and sale of plaintiff's automobile. There is some testimony in the record that plaintiff was known by both names; if not generally, he was known, at least to defendant, as B. F. Wilson, whilst to others, as Abner O. or A. O. Wilson. Thus, for the purposes of the transaction involved here, plaintiff's name may well be termed "B. F. Wilson", and in that name he chose to institute this suit, which provoked no objection or plea in abatement by the defendant.

However, be that as it may, it is uncontradicted that the plaintiff in suit is the identical person who suffered the damages complained of, arising out of a transaction which he had with the defendant, conducted in the name of B. F. Wilson. Plaintiff being in court under the name he assumed and, there being no question about his being the owner of the automobile, the party who borrowed the money, executed the note and mortgage, made the payments and received receipts therefor, and from whom the defendant exacted payments, relying on the mortgage he signed to effect the conversion, the misnomer, or assumed name which caused no hurt or prejudice to defendant, was an irregularity in pleadings, not material to this controversy. Plaintiff testified, "I didn't use the name only just making the loan and when I made the loan with Mr. Presley, I told Mr. Kirby (bookkeeper for Mr. Presley) my name and he says: `That's alright', but he said, `We will have to make the loan in the name the car papers are made in.'"

The rule as to names, in general, is stated in 19 Ruling Case Law, 1333, as follows: "It is merely a custom for persons to assume the name of their parents, but it is not obligatory nor punishable to adopt another name; hence it is generally held that a person may adopt any name in which to transact business, and may sue and be sued by such name. Since the object and purpose of describing a person by his name is to identify him, the general rule is that one may be designated in legal proceedings by the name by which he is commonly known, although not his true name. This rule does not require that he should be known by one name equally as well as by the other, but only that he be known by both. Again, a contract or obligation may be entered into by a person by any name he may choose to assume. All that the law looks to is the identity of the individual, and, when that is ascertained and clearly established, the act will be binding on him and on others."

Under the statutes of this state, the name of the plaintiff must be stated in the petition. R.S.1925, Art. 2003. However, this does not imply that a party may not contract and be contracted with, sue and be sued in an assumed name. The object and purpose of the statute is to identify the plaintiff with the cause of action. Furthermore, if, forsooth, the name of the plaintiff be incorrectly stated in the petition, the defect cannot be reached by exception, but must be reached by plea in abatement. Tryon v. Butler, 9 Tex. 553; Tousey v. Butler, 9 Tex. 525. In the instant case, the defendant, with knowledge of the variance in the pleadings and proof, did not avail himself of that right, but in the midst of the trial, merely challenged plaintiff's right to sue in the name he chose to assume, by motion to dismiss. It is settled, we think, that a misnomer of a party to a suit must be pleaded in abatement and heard in limine, thus allowing the party affected an opportunity to amend, or the right to an exception is lost.

Variance in pleadings and proof becomes material only where it tends to mislead or surprise the adverse party. No such contention is made here. It is admitted that the party bringing the suit is the aggrieved party in the transaction out of which the suit arose, thus the misnomer, if, in fact, it be such, is immaterial. As a consequence, such irregularity could not have misled or surprised appellant; in fact, he knew the relationship of the plaintiff to the cause of action. In Brown Cracker & Candy Co. v. Johnson, Tex.Civ.App., 154 S.W. 684, 685, a variance in pleadings and proof were shown; the petition alleged one thing and the evidence showed another. This court said: "We do not think, however, that the variance between the pleading and the proof is a material variance. To have been material it must have tended to mislead and surprise appellant upon trial, and if it did not have that effect then the variance is immaterial. McClelland v. Smith, 3 Tex. 210; Brown v. Sullivan, 71 Tex. 470, 10 S.W. 288; St. Louis A. & T. Railway Co. v. Evans, 78 Tex. 369, 14 S.W. 798; First National Bank, etc. v. Stephenson, 82 Tex. 435, 18 S.W. 583; Houston Lighting & Power Co. v. Hooper, 46 Tex.Civ.App. 257, 102 S.W. 133."

In the case of Niagara Fire Ins. Co. v. Lee et al., Tex.Sup., 19 S.W. 1030, it was contended that the verdict of the jury and the judgment of the court rendered thereon were contrary to the law and the evidence, for the reason that the suit was prosecuted by D. N. Lee and Margaret R. Lee, as plaintiffs, and the evidence conclusively showed that any cause of action which existed belonged to D. N. Lee and Rebecca Lee. The judgment was in favor of D. N. Lee and Margaret R. Lee, but the proof showed that the female plaintiff was in fact the person whose name was Rebecca Lee. The Supreme Court overruled the contention, saying that the court did not err in refusing the instruction, or in refusing a new trial, on the ground referred to in this assignment. See, also, Dean et al. v. Hines et al., Tex.Civ. App., 100 S.W.2d 194; Texas & N. O. R. Co. v. Haynes et al., 44 Tex.Civ.App. 272, 97 S.W. 849. So, we think, the plaintiff in suit in truth and fact being the one involved in...