Southwestern Bell Tel. Co. v. Commercial Metals Co. of Houston

• Decision Date: 01 April 1965
• Docket Number: No. 14529,14529
• Citation: 389 S.W.2d 116
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. COMMERCIAL METALS COMPANY OF HOUSTON et al., Appellees.
• Court: Texas Court of Appeals

Page 116

389 S.W.2d 116

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. COMMERCIAL METALS COMPANY OF HOUSTON et al., Appellees.

No. 14529.

Court of Civil Appeals of Texas, Houston.

April 1, 1965.

Ford W. Hall, Houston, and James M. Shatto, St. Louis, Mo., for appellant.

Bernard L. Chanon, Houston, for appellee, Scrap, Inc. of Texas.

Joel W. Cook and Joe Corman, Houston, for appellee, Commercial Metals Co. of Houston.

BELL, Chief Justice.

Appellee, Commercial Metals Company of Houston, herein called Commercial, recovered judgment against appellant in the amount of $960.37, this being the reasonable value of copper wire allegedly belonging to Commercial and allegedly converted by appellant. Appellee, Scrap, Inc. of Texas, herein called Scrap, recovered judgment against Commercial for $560.44. There is no complaint of the judgment against Commercial unless we should reverse the judgment against appellant. Appellant, however, appeals from the judgment against it.

It appears that sometime in 1959, Scrap bought from Buddy Dodson and A. K. Murphy, Jr., certain scrap metal including some #104 hard drawn copper wire. The wire was sold in August, 1959 to Commercial. The individuals who sold to Scrap were charged in Harris County with theft of the wife. Appellant claimed the wire had been stolen from it. On January 15, 1960, the wire was taken by the Sheriff of Harris County and delivered to appellant. Appellant was to hold the wife for use as evidence at the trial of the criminal cases. The two named individuals were indicted for felony theft but their cases were dismissed on November 29, 1962.

When the wire was taken from Commercial by the Sheriff, Commercial demanded repayment by Scrap of the purchase price of $960.37. This was refused, but on October 16, 1961, Scrap and Commercial entered into an agreement which recited that Scrap had sold to Commercial a quantity of copper allegedly stolen from appellant and that a suit (meaning criminal prosecution) had been pending a long time but had not been disposed of. It also recited the sheriff had seized the property and had not returned it to Commercial. It was then recited that if there should be no conviction and the alleged thief should go free, Scrap agreed the full amount of copper would be returned to Commercial and Commercial would credit Scrap with the full value of the copper. If there was a conviction Scrap would fully reimburse Commercial for the copper taken by the Sheriff.

On May 7, 1963, Scrap sued Commercial for $700.00 plus $250.00 attorney's fees. The suit was on the above agreement. There were allegations about the purchase from Dodson and Murphy, the sale to Commercial and the agreement to credit Scrap if the defendants were not convicted. Allegation was that there had not been conviction but the cases were dismissed. Scrap alleged it had reimbursed Commercial $700.00 and was entitled to what it had paid.

On June 17, 1963, Commercial answered with a general denial and a special plea that Scrap had expressly or impliedly warranted it had title when it sold the copper. Too, it pled the agreement with Scrap required that the copper be returned before it was obligated to credit Scrap and that the copper had not been returned.

By way of cross-action Commercial pled Scrap owed it on account $399.93. By a third-party action Commercial interpled Mr. Kern, the Sheriff of Harris County, and appellant. In the third-party petition Commercial alleged that on January 15, 1960, deputies of Kern, aided and abetted by appellant, demanded of Commercial 'the property described in Plaintiff's petition.' The property was surrendered to the deputy sheriff 'pending its use as evidence in the criminal action' against Dodson and Murphy. Then it is alleged that the prosecutions were dismissed November 29, 1962, but appellant and the sheriff had failed and refused to return the property to Commercial. Too, it pled 'trespass ab initio.'

Appellant answered with a general denial, a plea of the two year statute of limitation and a special plea asserting ownership of the wire that had in 1959 been stolen from it.

The Sheriff filed an answer denying the allegations and specially pleading he was acting in the scope of his authority and was performing his statutory duty in retrieving the property and turning it over to appellant when appellant's representatives properly identified the wire. He asked judgment over against appellant if he were held liable. However, judgment was favorable to the Sheriff.

Trial was before the court without a jury. The court filed his findings of fact and conclusions of law. We will notice only such findings and conclusions as are material to some questions raised on this appeal.

1. Immediately prior to the sale of the 13 drums of copper wire in August, 1959 by Scrap to Commercial the wire was in the exclusive and undisputed possession of Scrap and exclusive and undisputed possession was delivered by Scrap to Commercial at the time of sale.

2. On January 15, 1960, the Sheriff, through his deputies, seized the wire and the drums on the representation of appellant that the same had been stolen from it by Dodson and Murphy, who were charged with its theft, and that shortly after such seizure the Sheriff caused the material to be delivered to appellant for the purpose of keeping said material available as evidence pending trial of the criminal case.

3. On November 29, 1962, the prosecution against Dodson and Murphy was dismissed and there has been no conviction growing out of the alleged theft of the wire.

4. Appellant has retained possession and control of the property and has refused on demand to return the wire to Commercial.

5. Appellant was not the owner of the wire and drums seized by the Sheriff.

The court made the following conclusions of law, which are material to this appeal:

1. The possession of the Sheriff and appellant was, under Articles 933 to 936, Code of Criminal Procedure, lawful until November 29, 1962, when the criminal prosecution was dismissed and, therefore, the conversion took place within two years of the filing of the third party petition in June 1963.

2. The receipts given by the Sheriff and appellant constituted written contracts to return the property to the true owners so the four year statute of limitation, and not the two year statute, was applicable.

3. There was no proof by a preponderance of the evidence that the material was the property of appellant and was stolen from it.

4. Commercial was entitled to recover from appellant both on the theory of trespass and conversion.

Appellant's first complaint is that the court erred in holding that the two year statute of limitation did not bar recovery. Its contention is that the conversion, if there was a conversion, took place on January 15, 1960, when appellant took possession of the wire. The trial court, as above noted, found in effect that the Sheriff of Harris County seized the copper wire on the representation by appellant and that it had been stolen from appellant, and that possession was delivered to appellant by the Sheriff and that appellant was to hold the wire to be used in evidence on the trial of the criminal case against Dodson and Murphy. The court concluded the possession of the Sheriff and his nominee, appellant, was lawful until the dismissal of the criminal case on November 29, 1962, so the conversion took place within 2 years of the filing of the cross-action by Commercial.

We are of the view that the trial court could reach the conclusion that appellant was not asserting ownership to the exclusion of Commercial until it refused to...