Security Finance Co. v. Kone
| Decision Date | 30 October 1957 |
| Docket Number | No. 13192,13192 |
| Citation | 307 S.W.2d 163 |
| Parties | SECURITY FINANCE COMPANY, Appellant, v. Sam L. KONE, Appellee. |
| Court | Texas Court of Appeals |
Brown & Brown, John A. Daniels, Pat Legan, San Antonio, for appellant.
Moursund, Ball, Bergstrom & Barrow, W. Part Camp, San Antonio, for appellee.
This suit was instituted by Sam L. Kone against Felix Chapa, doing business as Chapa Motors, B. T. Woodard, doing business as Woodard Motors, and Security Finance Company, a partnership composed of Sarah Pennington Rudd, John Barry Rudd, Evelyn Pennington Wirth, and Ferd L. Wirth, to recover the title to two new Chevrolet automobiles, and in the alternative the purchase price of $3,479, paid by him for said automobiles. The cause was submitted to a jury on some twenty-two special issues, and after disregarding the jury's answer to Special Issue No. 20, the court rendered judgment that Kone take nothing against B. T. Woodard, S. T. Pennington and Felix Chapa. That Kone recover from the Security Finance Company the sum of $3,479, together with interest, and exemplary damages in the sum of $2,000, and further that B. T. Woodard recover the title and possession of the two Chevrolet automobiles involved, from which judgment the Security Finance Company has appealed.
Appellant first complains that the court should not have disregarded the jury's answer to Special Issue No. 20, reading as follows:
'Do you find from a preponderance of the evidence that at the time defendant, Chapa Motors, endorsed and delivered to defendant, Security Finance Company, the checks theretofore given to defendant, Chapa Motors, by the plaintiff, Sam L. Kone, the defendant, Security Finance Company, was not a holder in due course of such checks?'
The jury answered that it was a holder in due course.
Appellee, Kone, contends that he purchased from Chapa Motors the two Chevrolet automobiles involved herein, and that he gave his checks in the sum of $1,479 and $2,000 in payment of these automobiles; that Chapa promised to deliver to him the certificates of title to these two automobiles but has never done so. He further contends that the appellant had taken over the control and management of Chapa Motors, and that Chapa was only the agent of appellant in making this deal, and that these checks should have been applied to clearing the title of the two automobiles purchased by him, so that he could receive certificates of title, but that, on the contrary, the money was converted to appellant's own use and that appellee never received title to the automobiles. In the alternative, appellee contends that appellant was not a holder in due course of his two checks and that therefore he was entitled to recover the title to the automobiles, or was entitled to a money judgment for the total sum of the two checks.
Woodard contended, and the jury so found, that he held the title to the two automobiles, and it was agreed and understood that no title should pass to the automobiles until he was paid in full the price for which he was selling them, and that he has never been paid.
Appellant's position is that it was strictly a finance company and that it had nothing to do with Chapa Motors other than the financing of automobiles sold by it; that an employee of Chapa's had endorsed the Kone checks over to appellant, with a request that it release a mortgage lien held by it on certain automobiles which Chapa had theretofore sold to one Beard and one Cobb, and that it took the two checks and paid a consideration therefor by releasing the liens on the Beard and Cobb automobiles, and that it was an innocent holder of the checks in due course.
The jury, by their answer to Issue No. 16, found that at the time Chapa sold the two automobiles to Kone he was acting as agent of Security Finance Company, and in answer to Special Issue No. 20, that at the time Chapa endorsed and delivered to Security Finance Company the checks signed by Kone, the Security Finance Company became a holder in due course of such checks.
These two findings by the jury are clearly in conflict. They cannot both be true. If Chapa in selling the automobiles was acting as an agent for Security Finance Company, it could not be a holder in due course of such checks. It is therefore clear that the court erred in disregarding the jury's finding in answer to Issue No. 20, unless it can be said, as a matter of law, that the jury's answer to that issue was not supported by any evidence of probative force from which the jury might have found as they did in answering this issue.
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Kone v. Security Finance Co.
...and its partner-members from the judgment adverse to them, the Court of Civil Appeals reversed and remanded the cause for retrial. 307 S.W.2d 163. Kone's suit grew out of his purchase of two Chevrolet automobiles from Chapa Motors. In payments for the automobiles Kone executed and delivered......