Seigal v. Warrick

• Decision Date: 18 October 1948
• Docket Number: No. 5900.,5900.
• Parties: SEIGAL v. WARRICK et al.
• Court: Texas Court of Appeals

Page 883

214 S.W.2d 883

SEIGAL v. WARRICK et al.

No. 5900.

Court of Civil Appeals of Texas. Amarillo.

October 18, 1948.

Rehearing Denied November 13, 1948.

Appeal from District Court, Collingsworth County; Luther Gribble, Judge.

Suit by Forrest Seigal against V. E. Warrick and another for the conversion of 456 bushels of shelled corn. Judgment for the defendants, and the plaintiff appeals.

Judgment reversed and rendered.

Hamilton & Hamilton, of Matador, for appellant.

R. H. Cocke, of Wellington, for appellees.

LUMPKIN, Justice.

The appellant, Forrest Seigal, instituted this suit against the appellees, V. E. Warrick and J. L. Warrick, for the conversion of 456 bushels of shelled corn.

Trial was before the court without the intervention of a jury. At the conclusion of the evidence the trial court rendered judgment for the appellees. From this judgment the appellant has duly perfected his appeal to this Court.

In its findings of facts, which were filed at the appellant's request, the trial court found, as far as is material to this opinion, the following: The appellant resides at Goodland, Sherman County, Kansas. On January 27, 1948, he purchased 25,820 pounds of No. 2 corn at Bradley, Nebraska, for $2.50 per bushel. This corn was loaded in the appellant's six wheel trailer truck and brought to Goodland. On February 6 1948, the appellant instructed Auman A. Bevains, a man who had been in the appellant's employ for about three weeks, to drive the truck loaded with the corn from Goodland to Wichita Falls, Texas, and deliver the corn to one Arthur Cooper. The appellant furnished Bevains with $80 expense money and loaned him his jacket and a pair of boots. On the side of appellant's truck was the name "Forrest Seigal, Goodland, Kansas," together with the K.C.C. number.

The appellees are engaged in the grain business at Wellington, Texas. On February 7 Bevains appeared at Wellington and offered the corn for sale to Jones Singley, a grain dealer, who refused to buy the corn because of the falling market price. Bevains then offered the corn to the appellees, and the appellees purchased 26,070 pounds of No. 3 yellow corn, paying $3.50 per hundred weight. During the course of the transaction, Bevains represented to the appellees that he had bought the corn in Kansas some three weeks previously at $2.40 per bushel, that he was losing between 30 and 40 cents per bushel on his trade with the appellees, but that he might as well take his loss and try to make it back by purchasing and hauling tile. The appellees gave Bevains a cheque in the amount of $912.45. In order to accommodate him the appellees cashed the cheque. The cancelled cheque was offered in evidence. The appellees sold the corn to a livestock feeder for $2.10 a bushel. The court found that neither of the appellees saw the appellant's name and address on the side of the truck, although it was noticed by Jones Singley; that the market value of the corn purchased by the appellees on February 7 at Wellington was $2.10 per bushel; that on February 8 the appellant's truck was found abandoned at Childress, Texas; and that Bevains had not been located at the date of the trial.

Since the trial court found that a loss must result to either the appellant or the appellees, the court concluded as a matter of law that where there are two innocent parties, one of whom must suffer a loss by reason of the defalcation of a third party, the innocent party who places the third party in a position to impose upon the other innocent party is estopped to recover his loss from the other of the two innocent parties.

The appellant asserts that the facts show a conversion of his corn, and thus the court erred in rendering judgment for the appellees.

It is a fundamental principal of law that no one can be divested of his properly without his consent. One who buys property from a person who neither owns it nor is authorized by the owner to sell it receives no title, even though he is a purchaser in good faith. However, as a limitation upon this rule of law, where the real owner, by some act or conduct, vests the possession and right to personal property apparently in the seller, he thereby estops himself from setting up a claim to the property as against a purchaser for value without notice. It has been said that where the owner of personal property clothes another with the indicia of title, or allows him to appear as the owner, or as having the power of disposition, an innocent third party dealing with the apparent owner will be protected. However, the buyer under such circumstances has the burden of proving that he paid a valuable consideration in good faith and without notice and that the true owner either did something with the intention of misleading him or else was guilty of some form of negligence calculated to produce a deception. Neale v. Sears, 31 Tex. 105; Texas Pipe Line Co. v. Cozart, Tex.Civ.App. 38 S.W.2d 903, error dismissed.

A careful reading of the record fails to reveal any manner in which Bevains was clothed by the appellant with an indicium of title to the corn. Our courts have held that the owner of personal property will not be estopped by merely entrusting his possessions to another. Possession or control of property is not of itself sufficient for this purpose. If it were, no man could safely leave his...