Southwestern Inv. Co. v. Neeley, 17027

Decision Date13 June 1969
Docket NumberNo. 17027,17027
PartiesSOUTHWESTERN INVESTMENT COMPANY, Appellant, v. Ciaude D. NEELEY et ux., Appellees. . Fort Worth
CourtTexas Court of Appeals

Clayton & Clayton and Cleo G. Clayton, Jr ., Amarillo, for appellant.

Johnson & Browning and William V. Browning, Wichita Falls, for appellees.


MASSEY, Chief Justice.

Reference is made to Southwestern Investment Company v. Neeley, 412 S.W.2d 925, in which this court concluded that a prior judgment of the trial court--in the same case--should be reversed and rendered. Reference is also made to the Supreme Court's opinion in the same case, wherein it agreed that the trial court's judgment should be reversed, but directed that there be a retrial; Neeley v. Southwestern Investment Company, 430 S.W.2d 465.

The case is one wherein Claude D. Neeley et ux., as plaintiffs, sued defendant Southwestern Investment Company for conversion of household furniture. On retrial plaintiffs obtained judgment against the defendant, based upon a jury's verdict, for actual damages in the amount of $4,500.00 because of the conversion, plus exemplary damages in the amount of $20,000.00.

Judgment is to be reformed and affirmed on condition of remittitur; otherwise to be reversed and remanded for a new trial.

In the opinion of the Supreme Court (430 S.W.2d 465, 468) it was stated that evidence introduced on the prior trial established accord and satisfaction between plaintiffs and the defendant as a matter of law. The evidence was substantially the same on the trial from which the instant appeal was taken. Accordingly, our holding is that the evidence established accord and satisfaction as a matter of law. In other words there was a full and complete release by the defendant finance company of any and all mortgagee's interest in the plaintiffs' household furniture when it accepted plaintiffs' check for $837.01 on March 26, 1963. Afterward there was never a time when the defendant had a legitmate claim of any kind against the plaintiffs. Defendant did not have any right under the plaintiffs' mortgage, theretofore in effect.

Despite the fact that there had been accord and satisfaction of the debt the defendant actually believed the contrary, although aware that plaintiffs were contending that the pre-existent indebtedness had been released. The defendant also actually believed that its mortgage persisted as a valid and subsisting lien upon plaintiffs' furniture, as security for its claimed balance of indebtedness of $62.09.

Under what it considered as authority under contractual provisions in the 'Note With Chattel Mortgage' executed by the plaintiffs (at time the original lien was placed on their furniture) the defendant constructively entered into possession of plaintiffs' furniture on November 17, 1964, and proceeded to sell it at private sale (under power given in the mortgage instrument) for the sum of $62.09. It made no attempt to obtain more than $62.09 for such of the plaintiffs' property which was indisputably converted. Neither did defendant attempt to obtain $62.09 (plus expenses of 'repossession' and sale) by selling only one or two articles rather than all of plaintiffs' furniture.

We speak of $62.09 as the amount for which plaintiffs' furniture was sold. By reference to our opinion on former appeal (at 412 S.W.2d 925, 929) it is to be noted that a Mr. Brumbelow paid this amount of money to the defendant and also paid $315.00 to plaintiffs' landlord, a Mr. Lambert, in exchange for which Lambert unlocked the doors of the premises where the plaintiffs' household furniture was located and admitted Brumbelow and permitted him to remove it. More complete testimony relative thereto, produced on the trial following which the instant appeal was taken, disclosed the fact that the foregoing was arranged by a Mr. Scott Allred, acting as agent for the defendant finance company. Furthermore, the evidence positively reflects the fact that the defendant at all times knew that its lien was first and prior to that of any other person (assumption made that defendant's lien persisted). It is indicated that the landlord, Lambert, and perhaps Allred and/or Brumbelow might have believed that a landlord's lien applied to the furniture, next after that of the defendant. Of course there was no landlord's lien, whether or not there might have been a belief that there was.

As a matter of law Brumbelow's payment of the $315.00 to Mr. Lambert, as the landlord, would have been the act of a 'volunteer' insofar as the plaintiffs were concerned. The same thing would be true if, by implication, such payment might be attributable to the defendant. Plaintiffs' household furniture was 'exempt' under Texas statutory law, enacted in obedience to constitutional mandate. Vernon's Ann.Tex.Civ.St., Art. 3832, 'Property exempt to family'. As between plaintiffs and whoever paid the $315.00, there would be no entitlement to thereafter claim it of plaintiffs. What we are attempting to make clear to the reader is that the $315.00 which Mr. Brumbelow paid to Mr. Lambert may be entirely disregarded for purposes of this action, and the transaction viewed as one where Brumbelow, upon payment of $62.09 and nothing more, received (at the hands of, and because of arrangements with the defendant finance company) the furniture of the plaintiffs. It is our holding that action attributable to the defendant amounted to a conversion of plaintiffs' furniture as a matter of law, both in the 'repossession' action and in the sale thereof afterward.

If it be that we err in our holding that such conversion was established as a matter of law under undisputed evidence, then we hold that there is ample evidence in the case supporting the jury's finding of conversion against the defendant through authorized action of its agent, Scott Allred, and the jury's finding of subsequent ratification by managerial officials. We furthermore hold that the findings were not contrary to the greater weight and preponderance of the evidence.

In view of the accord and satisfaction between plaintiffs and the defendant any exercise of dominion over plaintiffs' property by the defendant would be a conversion. That would not have been true as applied to the defendant's 'repossession' (apart from any subsequent sale) had there been no accord and satisfaction between the parties, and if $62.09 was still due and owing, with plaintiffs' furniture incumbered as security therefor. In such situation hypothesized, however, we would nevertheless be of the opinion that there would have necessarily been a conversion as a matter of law resultant from the sale following 'repossession'. It would be the conversion by the defendant of plaintiffs' interest in their furniture, over and above the $62.09 claimed by the defendant, as the natural and proximate consequence of the defendant's sale of such property, i.e., in a manner whereby plaintiffs would receive nothing for their interest--though at the very time the defendant actually knew of and acknowledged the fact of its existence (as applied to the value of the furniture over and above the amount the defendant claimed plaintiffs owed).

In other words defendant would be guilty of conversion, as a matter of law,--because of the nature of the sale of plaintiffs' furniture--even had $62.09 continued to be due and owing. Certainly would defendant be guilty of like conversion where there was nothing owing, under the same legal theory; in addition to its guilt of conversion in the 'repossession' to be considered as having taken place before the sale, because defendant stood as a 'stranger' in relation to plaintiffs' furniture, having absolutely no right therein. Undoubtedly the defendant was liable to the plaintiffs for the actual damages which they sustained.

In our opinion the most material issue an the case is whether the circumstances attendant to the conversion of the plaintiffs' property, as evidenced by the proof in the case, justified and supported the submission of the issue upon the matter of the defendant's malice; and--in view of the jury's finding of the existence of the malice therein inquired about--whether the finding was against the great weight and preponderance of the evidence.

Special Issue No. 6 read as follows: 'Do you find from a preponderance of the evidence that the conversion of the Plaintiffs' furniture and personal effects, if you have so found, was done with malice?

'Answer 'Yes' or 'No'.


'In connection with the foregoing special issue, you are instructed that by the term 'malice' as used in this charge, is meant ill-will, bad or evil motive, or such gross indifference to the rights of others as will amount to a willful or wanton act, done intentionally or without just cause or excuse.'

We hold that the evidence introduced on trial raised and supported the inquiry of the foregoing special issue and that the 'no evidence' point of error should be and is overruled. Likewise, we hold that the jury's affirmative answer to such special issue was not contrary to the great weight and preponderance of the evidence in the case.

The general intent and objective of the defendant finance company, in effecting private sale of plaintiffs' furniture (which defendant believed to constitute security for a loan balance it erroneously considered as due and owing), Was only to obtain the amount of said loan balance for its own interest. Indisputably apparent from the evidence is the fact that the defendant could have 'cared less' whether the plaintiffs received anything for their interest in the property over and above the $62.09 which the defendant received through sale of the furniture. The evidence would warrant and justify the conclusion on the part of the jury that the sale was caused and/or accomplished in a way and manner evidencing an intent on part of the defendant that plaint...

To continue reading

Request your trial
4 cases
  • Christian v. First Nat. Bank of Weatherford
    • United States
    • Texas Court of Appeals
    • November 7, 1975
    ...reasonable manner. In this respect it had a fiduciary relationship with the defendants to perform this duty. In Southwestern Investment Company v. Neeley, 443 S.W.2d 573 (Fort Worth, Tex.Civ.App., 1969; Tex., 452 S.W.2d 705, remanded to the Court of Civil Appeals to determine whether or not......
  • Maxey v. Citizens Nat. Bank of Lubbock
    • United States
    • Texas Supreme Court
    • March 20, 1974
    ... ... Neeley v. Southwestern Investment Company, 430 S.W.2d 465 (Tex. 1968, on remand ... ...
  • Aetna Cas. and Sur. Co. v. Joseph
    • United States
    • Texas Court of Appeals
    • March 13, 1989
    ...situated to refrain from similar acts in the future, the judgment should not be disturbed by an appellate court. Southwestern Investment Co. v. Neeley, 443 S.W.2d 573, 580 (Tex.Civ.App.--FortWorth 1969), rev'd on other grounds, 452 S.W.2d 705 (Tex.1970); See also Mayer v. Duke, 72 Tex. 445,......
  • Southwestern Inv. Co. v. Neeley
    • United States
    • Texas Supreme Court
    • March 25, 1970
    ...such a remittitur, and the court of civil appeals affirmed the judgment for $700.00 actual damages and $20,000.00 exemplary damages. 443 S.W.2d 573. We granted the application of Southwestern Investment Company, hereinafter called S.I.C., upon its point that the court of civil appeals erred......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT