Ward v. Clark

Decision Date21 November 1968
Docket NumberNo. 392,392
PartiesTravis WARD, Appellant, v. Grady C. CLARK, Jr., et al., Appellees. . Tyler
CourtTexas Court of Appeals

Moore & Holland, Willis D. Moore, Athens, for appellant.

Mitchell, Gilbert & McLean, Arthur Mitchell and Phillip W. Gilbert, Austin, and Ronald J. Herrmann, San Antonio, for appellee, Grady C. Clark, Jr.

MOORE, Justice.

This suit commenced when appellant, Travis Ward, brought suit against one Owen F. McCauley upon a promissory note in the District Court of Henderson County, Texas, in Cause No. 66--127, and filed a garnishment proceeding against Aetna Casualty and Surety Company seeking to impound certain funds which were allegedly due McCauley upon two policies of fire insurance. Shortly thereafter, Pacific Supply Cooperative also brought suit against McCauley upon an open account in said court in Cause No. 66--256 and likewise garnished Aetna. Aetna answered by filing a bill of interpleader in Cause No. 66--256 and depositing the insurance funds into the Registry of the Court. Aetna impleaded appellee, Grady C. Clark, Jr. and Owen F. McCauley as third party defendants, alleging that they were making a claim upon the proceeds of the insurance policy. Appellee, Grady C. Clark, Jr., replied by asserting that he was the sole owner of the property and the named insured under the policy and was therefore entitled to the funds. Thereafter, he moved for a severance upon his claim and requested a trial for the determination of ownership of the proceeds of the policy. The court granted the motion and set a date for the hearing.

After a trial before the court, sitting without a jury, judgment was rendered awarding the funds to appellee, Grady C. Clark, Jr. Appellant, Travis Ward, being dissatisfied with the judgment, perfected this appeal. None of the other parties in the court below joined in the appeal.

The facts giving rise to the controversy developed in this manner. In 1964 Grady C. Clark, Jr. was the owner of a grain storage warehouse and certain grain handling equipment situated in Athens, Texas, where he and Owen F. McCauley were engaged in the business of storing grain. Appellant Ward contacted Clark with reference to purchasing his interest in the business. By a letter dated May 18, 1964, Clark offered to sell Ward a two-thirds interest in the grain handling equipment and in a certain grain storage contract. Appellant accepted the offer. The letter contract contained this statement: 'As you know McCauley owns the building and land at Athens.' Unknown to appellant, this statement was false. McCauley did not own the building and land, but only had an oral contract with Clark to buy the same provided he could raise the money. After Ward bought the two-thirds interest in the grain handling equipment, Clark authorized McCauley to use the building and equipment until he could raise the money to pay for the same. Shortly thereafter, Ward and McCauley commenced operating the grain handling facilities under a profit sharing agreement. On or about July 1, 1964, when it became apparent that McCauley would not be able to purchase the building, Clark agreed to lease him the building and his one-third interest in the grain handling equipment for a period of three years, provided McCauley would keep the building insured and install additional equipment in the building which was to become the property of Clark at the expiration of the lease. McCauley installed the equipment and secured a policy of insurance with Aetna Casualty and Surety Company, naming both him and Clark as the insureds. By agreement, a loss payable clause was inserted in favor of the First National Bank of Athens to cover a $9,500.00 loan which McCauley had borrowed to install the additional equipment. McCauley and Ward continued to operate the business under the profit sharing agreement until June, 1965, at which time they mutually agreed to terminate their agreement. Ward sold his two-thirds interest in the equipment to McCauley for $8,500.00, taking McCauley's promissory note in that amount. Thereafter, McCauley continued to operate the business alone until the same was destroyed by fire in April, 1966.

After the fire, appellant Ward sued McCauley on the note and garnisheed the funds and the present dispute as to the ownership of the funds arose. Appellee Clark claimed all of the funds deposited by Aetna. McCauley disclaimed any interest in the proceeds of the policy covering the building and requested only that the court determine the rightful owner of the proceeds of the policy covering the personal property. In response to these pleadings, appellant neither denied that Clark was the...

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3 cases
  • McCoy v. Nelson Utilities Services, Inc.
    • United States
    • Texas Court of Appeals
    • July 31, 1987
    ...1981, no writ); Goodman v. Art Reproductions Corporation, 502 S.W.2d 592, 594 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.); Ward v. Clark, 435 S.W.2d 621, 624 (Tex.Civ.App.--Tyler 1968, no writ); Butler, Williams & Jones v. Goodrich, 306 S.W.2d 798, 802-03 (Tex.Civ.App.--Houston 1957, wri......
  • Randle v. NCNB Texas Nat. Bank
    • United States
    • Texas Court of Appeals
    • June 24, 1991
    ...it an undue advantage. No error is shown. See Robert Gordon, Inc. v. Ingersoll-Rand Co., 117 F.2d 654, 661 (7th Cir.1941); Ward v. Clark, 435 S.W.2d 621, 624 (Tex.Civ.App.--Tyler 1968, no writ); American Nat'l Ins. Co. v. Allen, 370 S.W.2d 140, 143 (Tex.Civ.App.--Waco 1963), rev'd on other ......
  • Lewter v. Dallas County
    • United States
    • Texas Court of Appeals
    • June 5, 1975
    ...and not to a party seeking to uphold a judgment which presumably held that pleadings were insufficient; and cites Ward v. Clark, Tex.Civ.App., NWH, 435 S.W.2d 621; Butler, Williams & Jones v . Goodrich, Tex.Civ.App., NRE, 306 S.W.2d 798; Lincoln v. King, Tex.Civ.App., NWH, 193 S.W.2d 437, a......

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