Spolane v. Coy

Decision Date10 July 1941
Docket NumberNo. 11245.,11245.
Citation153 S.W.2d 672
PartiesSPOLANE v. COY.
CourtTexas Court of Appeals

Appeal from Harris County Court; William M. Holland, Judge.

Suit by Margaret Coy, doing business as Cafe Lido, against Henry M. Spolane for conversion of a certain sound system from the plaintiff's place of business. From an adverse judgment, the defendant appeals.

Affirmed.

Gordon & Spata, of Houston, for appellant.

Pinkney H. Fowler, of Houston, for appellee.

MONTEITH, Chief Justice.

Margaret Coy, doing business as Cafe Lido, brought this suit in the Justice Court of Harris County to recover damages alleged to have been sustained by her as the result of the conversion of a certain sound system from her place of business by appellant, Henry M. Spolane.

Upon an appeal to the County Court at Law of Harris County, in a trial before the court without a jury, judgment was rendered in favor of appellee and against appellant, individually, and as the Sterling Radio Products Company, in the sum of $80.

No findings of fact or conclusions of law were requested by the parties or filed by the trial court.

Appellee pled that appellant, who was alleged to have been doing business at the time of the alleged conversion as the Sterling Radio Products Company, had, acting by and through a duly authorized agent, removed from her place of business and converted to his own use, a sound system which had previously been purchased by her from appellant. Appellant answered by general demurrer and general denial. He specially denied that, at the time of the alleged conversion, he was doing business as the Sterling Radio Products Company.

The record shows that said sound system was purchased by appellee, on or about May 27, 1940, and that it was removed from appellee's place of business, in her absence, by one Bennett, who was alleged to have been the agent of appellant, on or about June 13, 1940.

It was stipulated by appellant that on January 17, 1940, appellant had filed in the office of the county clerk of Harris County an assumed name certificate in which he stated that he was conducting his business under the name of the Sterling Radio Products Company. It was also stipulated that no certificate announcing a change in ownership in said business had been filed up to the date of the trial. It was also stipulated by the parties that the Sterling Radio Products Company had been incorporated under the same name on February 15, 1940, but that no notice of the dissolution of the business or of the intention of the owners thereof to become incorporated was given as required by law.

Appellant complains of the action of the trial court in refusing to sustain his motion for judgment on the evidence, for the alleged reason that appellee had failed to establish that an agency existed between himself and Bennett, who had removed said sound system from appellee's place of business.

While it is the general rule that the declarations of an agent that he is acting as such are not sufficient in themselves to establish the fact of agency, yet such declarations are admissible to show that the declarant purported to act as such agent, and it must then be further shown by competent testimony that he had authority to act as agent. Alford et al. v. Thomas, Tex.Civ.App., 238 S.W. 270; Hausman Bros. Packing Co. v. Allen, Tex.Civ.App., 59 S.W.2d 246; Gibson v. Gillette Motor Transport, Inc., Tex.Civ.App., 138 S.W. 2d 293; Norris Bros., Inc., v. Mattinson, Tex.Civ.App., 145 S.W.2d 204.

In the instant case, Thelma Jones, a waitress employed by appellee in her place of business, testified that, at the time of the removal of said sound system from appellee's place of business by Bennett, he had stated to her that he was working for the Sterling Radio Products Company.

Appellee testified that, on numerous occasions when she had called the Sterling Radio Products Company over the telephone, Mr. Bennett had answered the telephone and that he had told her over the telephone on one of such occasions that appellant had instructed him to take the sound system out.

Mr. P. H. Fowler, the attorney for appellee, testified that he had called the Sterling Radio Products Company over the telephone and had asked to speak to the party in charge or the person who ran the place of business, and that the party who answered the telephone had stated to him that his name was Spolane and that he ran the Sterling Radio Products Company. Mr. Fowler testified that he had then asked about the sound system in question and was told that appellee had failed to make her payments and that he had taken the system.

It is the settled law of this state that...

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7 cases
  • Earnhart v. State
    • United States
    • Texas Court of Criminal Appeals
    • 20 June 1979
    ...the speaker represents that he is the one called, and there is no proof to the contrary. See Gleason v. Davis, supra; Spolane v. Coy, 153 S.W.2d 672 (Tex.Civ.App.1941). Curtis testified that he called the number listed as Earnhart Septic Tank, on Highway 377, north of Pottsboro. See also Wo......
  • Eastex Poultry Co. v. Benefield
    • United States
    • Texas Court of Appeals
    • 22 April 1954
    ...was filed was not great enough to effect the operation of this presumption. See: 32 Tex.Jur. 504, Sec. 180. See, also, Spolane v. Coy, Tex.Civ.App., 153 S.W.2d 672; Owl Taxi Service v. Saludis, Tex.Civ.App., 122 S.W.2d 225. The evidence supported the trial court's implied findings concernin......
  • Gleason v. Davis
    • United States
    • Texas Court of Appeals
    • 16 February 1955
    ...agency of a person who answers a business phone. Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771; Spolane v. Coy, Tex.Civ.App., 153 S.W.2d 672; Western Union Telegraph Co. v. Campbell, Tex.Civ.App., 212 S.W. 720; Texas Manufacturing Co. v. Fitzgerald, Tex.Civ.App., 176......
  • Tarkington v. Beneficial Finance Co. of Port Arthur
    • United States
    • Texas Court of Appeals
    • 14 November 1974
    ...that he is the person called and is one authorized to take the message, in the absence of proof to the contrary. Spolane v. Coy, Tex.Civ.App., 153 S.W.2d 672 (no writ hist.). And see Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771. Also, if the message reveals that the......
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