Travelers Ins. Co. v. Gibson, 1910.

Decision Date15 July 1937
Docket NumberNo. 1910.,1910.
Citation110 S.W.2d 241
CourtTexas Court of Appeals

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Suit by the Travelers Insurance Company against Desmond Gibson, wherein defendant filed a cross action. From a judgment for defendant on his cross action, plaintiff appeals.

Judgment reversed and rendered in part and affirmed in part.

Renfro & Kilgore, of Dallas, for appellant.

L. W. Shepperd, of Groesbeck, for appellee.

GEORGE, Justice.

Appellant, the Travelers Insurance Company, filed suit in trespass to try title against appellee, Desmond Gibson, for the title and possession of a 232-acre farm in Limestone county on January 3, 1936, and on or about January 25, 1936, caused writ of sequestration to issue and be placed in hands of constable for execution. Appellee filed a cross action and sought actual and exemplary damages on the ground that he was entitled to the possession and use of said farm for the year 1936, and that he had been wrongfully and maliciously ousted therefrom. Appellant, in its first supplemental petition, alleged (1) that it had for several years prior to 1936 rented to Gibson the farm for each year by written contract signed by both parties, and that on October 16, 1935, Gibson signed lease contract for the year 1936 but same was never executed by it; (2) that the lease contract provided that in case of the sale of said premises prior to December 1, 1935, the lease would not take effect and that it did in fact sell the land to H. P. Hickman prior to December 1, 1935; (3) that appellee remained in possession after January 1, 1936, and refused to surrender possession.

The trial was before the court and jury and, on answers of the latter to special issues, judgment was rendered that appellant take nothing by its suit against appellee and that appellee recover judgment on his cross action against appellant in the sum of $677.70, together with interest thereon.

The verdict of the jury found, among other things, that (1) appellant prepared or caused to be prepared a written rental contract for the year 1936 covering the farm; (2) appellant presented or caused to be presented to appellee such contract for his signature on October 16, 1935; (3) appellee signed such contract on said date; (4) appellant accepted and retained in its possession such contract; (5) appellant did not transfer the absolute or general property in the premises to H. P. Hickman, fully negotiating and closing such transfer, prior to December 1, 1935.

Appellant, in due time, filed a motion for judgment non obstante veredicto and excepted to the action of the court in overruling same. After the overruling of its motion for judgment non obstante veredicto, it, in due time, moved the court to enter judgment decreeing title to the farm in it and excepted to the court's action in denying such motion. It also excepted to the judgment as rendered and entered. The only issues presented are: (1) Is there any substantial evidence in the record of probative force to sustain the jury's finding that appellant accepted the rental contract for the year 1936; (2) does the evidence establish, as a matter of law, sale of the farm to H. P. Hickman prior to December 1, 1935; and (3) did the trial court err in denying appellant judgment for the title to the farm? Neither the sufficiency of the evidence to support the jury's finding of acceptance of rental contract by appellant and the judgment based thereon, nor the adequacy or correctness of the trial court's charge, is before us for consideration, because appellant did not choose to raise and present such matters to the trial court for its action thereon, by means of a motion for new trial, but elected to file a motion for judgment non obstante veredicto and stand on the proposition that there was no evidence to sustain the finding of acceptance, and that the evidence conclusively established sale of farm prior to December 1, 1935. James v. Texas Employers Insurance Ass'n (Tex.Civ.App.) 98 S.W.2d 425; Duvall v. Kansas City Life Insurance Co. (Tex.Civ.App.) 96 S.W.2d 793; Hines v. Parks (Tex.Com.App.) 96 S.W.2d 970; Brown v. Rentfro, 57 Tex. 327; Freeman v. Schwenker (Tex.Civ.App.) 73 S.W.2d 609; North v. Atlas Brick Co. (Tex.Com. App.) 13 S.W.2d 59; article 2211, Revised Civil Statutes (as amended by Acts 1931, c. 77, § 1 [Vernon's Ann.Civ.St. art. 2211]).

The evidence shows that L. R. Price, Jr., was an employee of appellant, acting in the capacity of field man, and that it was his duty to inspect its farms, present rental contracts to prospective tenants for their signature, and forward such contracts to its Dallas office for approval and execution; that it was also his duty to recommend such tenants as he considered to be acceptable; that he presented the contract in question to appellee for his signature, on October 16, 1935, and after its execution by appellee took the contract to his office in Waco, Tex. He testified that he was without authority to execute rental contracts and that he kept this contract in his office in Waco until December 4, 1935, when he, for the first time, filled in the blank spaces and forwarded it to the Dallas office, but this testimony is apparently in conflict with the testimony of D. C. Fitch, state manager of appellant's loan department, to the effect that he received such contract in November, or the latter part of October, 1935. However this might have been, a careful examination of the entire record discloses that there is not any evidence either showing or tending to show that Price had either actual or apparent authority to rent land or execute rental contracts therefor and thereby bind appellant, and for such reason it cannot be inferred from the facts and circumstances in this case that Price accepted such rental contract for 1936 and that he, in accepting same, bound appellant. Missouri Pac. Ry. Co. v. Porter, 73 Tex. 304, 11 S.W. 324; Beazley v. McEver (Tex.Civ.App.) 238 S. W. 949; Wroth v. Norton, 33 Tex. 192; Middleton v. Brawley (Tex.Civ.App.) 12 S.W.2d 257; 17 Tex.Jur. § 57, pp. 247, 248.

The burden was on appellee to prove execution of rental contract by appellant. This he could do by showing acceptance of contract by appellant's authorized agent, who was conceded to be D. C. Fitch, and such acceptance could be established by circumstantial evidence. Abeel v. Weil, 115 Tex. 490, 283 S.W. 769; Martin v. Roberts, 57 Tex. 564; Campbell v. McFadin, 71 Tex. 28, 9 S.W. 138; Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Johnson v. Tunstall (Tex.Com.App.) 25 S. W.2d 828; Houston Oil Co. v. Singleton (Tex.Civ.App.) 44 S.W.2d 479; Pioneer Savings & Loan Co. v. Paschall, 12 Tex. Civ.App. 613, 34 S.W. 1001; Dockery v. Thorne (Tex.Civ.App.) 135 S.W. 593; Reeves Furniture Co. v. Simms (Tex.Civ. App.) 59 S.W.2d 262; Buckler v. Kneezell (Tex.Civ.App.) 91 S.W. 367; Detro v. Gulf, C. & S. F. Ry. Co. (Tex.Civ.App.) 188 S.W. 517; Brewer v. Cochran, 45 Tex. Civ.App. 179, 99 S.W. 1033.

There is no contention made that the rental contract for 1936 was signed by D. C. Fitch, but it is contended by appellee that the collateral facts and circumstances in this case are sufficient to raise the issue of acceptance of rental contract by D. C. Fitch, and, if such be true, then it was for the jury to determine whether Fitch completed rental contract by acceptance.

Giving verity to and viewing all the testimony in the entire record bearing on the question of acceptance of rental contract for 1936 in the most favorable light to uphold the jury's finding thereon, we may consider as established the following facts and circumstances: (1) That appellee had rented the 232-acre farm each year since appellant had owned it; that the rental contracts were in writing; (2) that appellee would receive his copy of executed rental contract in a week or two after he had signed same; that appellee's copy thereof, for the year 1935, was signed by D. C. Fitch, state manager; (3) that D. C. Fitch, state manager of appellant's loan department, had authority to rent the farm and approve and execute rental contract on behalf of appellant; (4) that L. R. Price, Jr., field man for appellant, came to appellee, on October 16, 1935, and asked him if he wanted to rent the farm for the year 1936, and that appellee then stated his desire to rent farm and signed contract in triplicate; that Price carried off with him original and all copies of the contract; (5) that this rental contract contained the following provisions: "It is further understood and agreed by and between the parties hereto that in case of a sale of said premises prior to December 1, 1935, then this lease shall not take effect but shall be null and void," etc.; (6) that appellee was a satisfactory tenant and had been recommended by Price as a tenant for the year 1936; (7) that D. C. Fitch received rental contract in November or latter part of October, 1935; (8) that H. P. Hickman, on October 28, 1935, executed and delivered to L. R. Price, Jr., a written agreement to purchase the farm, containing the following clauses, to wit: "This contract shall be closed on or before December 1, 1935. The seller shall deliver possession of this farm January 1, 1936"; (9) that Price, on October 28, 1935, in writing, advised appellee that appellant had a purchaser for the farm; that the bid had been sent in; that he was not positive that the sale would go over and that he would notify appellee as soon as he heard from the home office; (10) that D. C. Fitch retained the original and all copies of rental contract and did not notify appellee whether such contract had been accepted or rejected or whether approval or rejection of same was being withheld pending consummation of sale; (11) that appellee, on December 1, 1935, not having heard anything from appellant as to acceptance or rejection of rental contract or as to consummation...

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