Valley Stockyards Co. v. Kinsel

• Decision Date: 19 June 1963
• Docket Number: No. A-9273,A-9273
• Citation: 369 S.W.2d 19
• Parties: VALLEY STOCKYARDS COMPANY, Petitioner, v. Dan W. KINSEL, Jr., Respondent.
• Court: Texas Supreme Court

Page 19

369 S.W.2d 19

VALLEY STOCKYARDS COMPANY, Petitioner, v. Dan W. KINSEL, Jr., Respondent.

No. A-9273.

Supreme Court of Texas.

June 19, 1963.

Greenwood & Russell, Martin P. Ferrero, Harlingen, for petitioner.

Ewers, Toothaker, Ewers, Elick, Jones & Abbott, O. C. Hamilton, Jr., and Geo. D. Byfield, McAllen, Will Wilson, Austin, for respondent.

NORVELL, Justice.

Respondent's motion for rehearing is overruled. We adhere to our order reversing the judgment of the Court of Civil Appeals and the District Court and remanding this cause to the latter court for another trial. However, the opinion handed down in this cause on March 13, 1963, is withdrawn and the following substituted therefor:

The trial court granted a summary judgment in favor of plaintiff, Dan W. Kinsel, Jr., and against defendant Valley Stockyards Company, for $17,451.02, upon the theory that the stockyards company had converted 158 head of Kinsel's cattle. The Court of Civil Appeals affirmed, 360 S.W.2d 817. ¹

It is doubtful if much is gained by attempting to dispose of a case of this type by use of the summary judgment procedure. A restatement, exception, or a refinement of a rule of law is not involved, but rather the application of a rule of law to a particular factual situation. The controlling question is whether or not at the time Kinsel delivered the 158 head of cattle to a cattle trader named Will Ed. Wiley, he intended that title to the cattle should pass to the said Wiley. Seemingly, it would not be a very difficult task to determine this issue upon a preponderance of the evidence basis, where the trier of facts would be entitled to consider the credibility of witnesses and the weight to be given their testimony. However, it is another thing to determine from affidavits and deposition statements which are equivocable in nature and subject to varying inferences whether or not a genuine fact issue is raised. In determining this issue, the same rule is applied as that used to test the evidence in a conventional trial in deciding whether or not an instructed verdict should be given. The evidence (the affidavit and deposition statements) must be viewed in the light most favorable to Valley Stockyards Company, the party against whom the judgment was rendered. When statements and circumstances are subject to more than one inference or interpretation, that version most favorable to the petitioner must be accepted. In other words, the judgments of the courts below must be reversed unless we can say that it appears conclusively as a matter of law that at the time the cattle were delivered to Wiley, Kinsel did not intend that title should pass.

It appears that after the cattle had been weighed and delivered to Wiley, and the amount of money due Kinsel had been finally computed, Wiley delivered a check for the calculated purchase price to Kinsel. The check was not honored by the bank upon which it was drawn. It is Kinsel's contention that he never parted with title to the cattle; and consequently when Valley Stockyards purchased the cattle from Wiley (without notice of Kinsel's claim) and resold the cattle in the usual course of business, the stockyards company became liable to Kinsel as a converter.

In our opinion this proposition cannot be sustained. A jury might well agree with it, but the problem is one for the trier of facts and cannot be resolved as a matter of law.

This brings us to a somewhat detailed consideration of the facts. Wiley did not testify. Both Kinsel and Valley Stockyards Company were victims of a swindle which was perpetrated by him, and he had apparently decamped to parts unknown. Kinsel's deposition statements are all that were available to show the nature of the transaction between him and Wiley. He was a highly interested witness, and hence his statements need not necessarily be credited, unless, of course, they could have been easily contradicted if untrue. A jury would be entitled to accept a portion of Kinsel's testimony and reject other portions. With these rules in mind and viewing the affidavit and deposition statements in the light most favorable to petitioner, we make the following statement of the facts:

Kinsel had known Wiley for more than a year. He knew that Wiley was a 'trader in livestock,'-that is, that he bought cattle for resale. He said he did not know what Wiley intended to do with the cattle which were the subject matter of this lawsuit, but it may be inferred from his account of his past dealings with Wiley that he knew that a resale of the cattle would take place shortly after he delivered the cattle to Wiley. In fact, he testified that in attempting to trace the cattle after their sale to Wiley, he discovered that certain cattle delivered to Wiley on Friday, November 5th, had been sold the following day in at least two separate sales yards in the Lower Rio Grande Valley. Kinsel met Wiley in the spring of 1960; and before the transaction of November 5th and 6th, 1961, which gave rise to this lawsuit, he had sold Wiley two or three bunches of his own cattle and one bunch of cattle owned by a partnership in which he had an interest. In one of these previous transactions, had he delivered a bill of sale to Wiley. Kinsel testified that in selling cattle, he very seldom delivered a bill of sale, but that there were a number of 'bill of sale drafts that are given and that sort of thing for cattle.' He was evidently referring to 'a form of instrument (sometimes) used where a bill of sale is given and is conditioned upon the draft's being honored.' Kinsel in all his transactions with Wiley including the one which is the subject matter of this litigation accepted ordinary bank checks signed by Wiley.

The sale here in dispute took place on November 4th and 5th of 1961. The cattle were sold by the pound, and the terms of the sale were agreed to on Friday, November 4th. The cattle were delivered by Kinsel to Wiley in installments. Kinsel lived in Cotulla in La Salle County. He transported the cattle by truck to Encinal where they were weighed and delivered to Wiley. About 69 head were delivered on Friday, the fourth, and the remainder (89 head) on Saturday, the fifth. After the delivery of the final installment of cattle on Saturday, Wiley came to Kinsel's home near Cotulla where the amount due for the cattle under the agreement of the parties was figured up, and Wiley delivered Kinsel his check for such amount. This was late in the afternoon of the fifth.

Kinsel's deposition testimony hearing directly upon the delivery of the cattle and the acceptance of the check was as follows:

'Q: And, of course, he paid by check on November 4th and 5th for the cattle he got at that time? A: That is right.

'Q: And, of course, if this hadn't been acceptable to you, you wouldn't have delivered the cattle to him, would you? The payment by check. A: I delivered the cattle to him, yes.

'Q: That is what I mean. If it hadn't been acceptable, you wouldn't have delivered him the cattle? A: I guess the delivery speaks for that, doesn't it.

'Q: Well, I am just trying to get you to say so. That is all. In other words, when he delivered you the check, the cattle were paid for and you delivered him the cattle and you knew he was taking them off from your ranch? A: When he gave me a check, I delivered him the cattle, yes, that is right, and he took the cattle.

'Q: And you accepted the check in payment for the cattle? A: I accepted the check for the cattle, yes.

'Q: Now, I guess you told Will Ed that these weren't his cattle until the check cleared the bank, didn't you? A: I don't recall telling him that.

'Q: Well, if you had told him under the circumstances, you would have recalled it, would you not? A: I suppose I would.

'Q: You didn't say for instance, 'Now, Will Ed, you hold on to these cattle until this check clears,' did you? A: No, I didn't say anything of that nature.

'Q: Well, you said that now that you didn't tell Will Ed not to dispose of the cattle when he purchased them, is that correct? A: No, I didn't tell him.

'Q: In other words, it was unconditional delivery by you to him of the cattle? I mean you turned them over to him knowing he was going to put them in the trucks and take them off? A: That is right.

'Q: It was unconditional? A: I turned them over to him knowing that he was going to put them in the trucks and take them off, that is right.

'Q: And when he took them off in the truck, you knew, knowing by having known Will Ed, that he was likely to take them to a sale yard and sell the cattle? A: I did not know what he was going to do with the cattle.

'Q: Well, I know that you said he didn't specifically tell you but you knew that he was in that business and that he very likely would take at least part of them to a sale yard and sell them? A: I will say I knew there was possibility that he would put them in a sale yard. I didn't know what he was going to do with them. Possibility of him doing nearly everything with a group of cattle just like anybody, or any time you sell cattle, you don't know exactly what you are going to do with them. They won't tell you.

'Q: Well, even knowing that possibility, you didn't make any statement to him in connection with the check being honored, you delivered the cattle to him unconditionally and accepted his check in payment? A: I delivered the cattle to him and accepted his check and he put them in his truck and hauled them off, yes sir.

'Q: All right. And he put them in his truck and you knew that is what he was going to do? A: I didn't know what he was going to do with the cattle.

'Q: That he was going to put them in the truck and haul them off? A: That is right.

'Q: He wasn't going to leave them there? A: That is right.'

Respondent relies upon the general rule that where a cash sale is involved and personal property is delivered in exchange for a check, there is a presumption that the parties did not intend that title to the property should pass until the check...