Western Cottage Piano & Organ Co. v. Anderson

• Decision Date: 16 March 1907
• Citation: 101 S.W. 1061
• Parties: WESTERN COTTAGE PIANO & ORGAN CO. v. ANDERSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

101 S.W. 1061

WESTERN COTTAGE PIANO & ORGAN CO. v. ANDERSON.^*

Court of Civil Appeals of Texas.

March 16, 1907.

Rehearing Denied May 4, 1907.

Appeal from District Court, Tarrant County; Mike E. Smith, Judge.

Action by Mrs. B. E. Anderson against the Western Cottage Piano & Organ Company. From a judgment for plaintiff, defendant appeals. Affirmed.

F. M. Brantly, for appellant. W. R. Parker, for appellee.

SPEER, J.

The nature of this case will be disclosed by an examination of the opinion filed by Chief Justice Conner on a former appeal, and reported in 76 S. W. 945. On the last trial, the case having been reversed in the Supreme Court on a question of service (79 S. W. 516, 97 Tex. 432), appellee recovered judgment for the full amount sued for; that is, $465 actual damages and $1,000 exemplary damages.

The first and second assignments of error present a question which was necessarily decided on the former appeal, and that was as to the sufficiency of appellee's petition to show a cause of action for exemplary damages. The exception urged, though denominated a special exception, is no more than a general demurrer, and the Supreme Court could never have granted a writ of error in the case if the petition had not shown a cause of action for exemplary damages, since the claim for actual damages was beneath the minimum jurisdiction of that court.

An objection is made to one or more paragraphs of the court's charge, and to the admission of a great deal of plaintiff's evidence concerning a certain bill of sale executed by Mann to McCarley to secure an indebtedness, and to the admission in evidence of the bill of sale itself, upon the ground that appellee's pleadings declared that the instrument purported to be a mortgage. The undisputed facts show that the instrument was, in effect, a chattel mortgage; but, whether it was so or not, we hold the variance between the allegation and the petition to be altogether immaterial. The gist of appellee's cause of action was the fraud of appellant's agent, McCarley, in representing this instrument, whatever it was, to be a valid security. The action, therefore, must not be confounded with an action on the instrument, and the rules of pleading and evidence applicable to the latter action would be entirely too strict to apply to the present. For this reason the objection to the introduction of the instrument that its execution was not proved was of no force, and the fact that appellee, in attempting to meet this objection, proved its execution by the hearsay testimony of Mann and McCarley, was a useless thing. But the immateriality of this evidence should not work a reversal of the case. We conclude, as we did on the former appeal, that the evidence tends to show the authority of McCarley to act for the appellant in the transaction with appellee, and that the trial court properly overruled all objections to testimony based upon this contention.

It was proper to admit in evidence the testimony of the appellee as to statements made by McCarley as to the number of instruments Mann was selling for them per day, and the amount he was making, and that he (McCarley) would not require a further settlement with Mann for three months, and that by that time he would be able to repay appellee out of the proceeds of his sales, since the same bore directly upon the good faith of the agent McCarley in the transaction with appellee whereby he obtained $465 of her money. If McCarley made these statements testified to by appellee, and then went immediately, as the evidence shows he did, from Ft. Worth, where the conversation took place, to Weatherford, where Mann was in business, and closed up his establishment, and put him out of business, such facts should be admitted in evidence, and would go far to convince any court or jury that his acquisition of appellee's money was fraudulent in the first place.

It is next insisted that the court erred in admitting the testimony of the witness John L. Alcott, in behalf of appellee, to the effect that "about the 31st day of January, 1902, J. B. McCarley had charge of the business of the defendant and its agents in the state of Texas, and looked after the company's agents and the company's property in Texas at that time; to the best of witness' knowledge and belief, said McCarley had full control of all the agencies and of the business of the defendant in Texas at that time"—the objection being that the witness' testimony disclosed that he was not informed as to the nature and extent of McCarley's authority, that the testimony was immaterial and incompetent, and that the deposition shows that the witness was not informed as to the subject-matter about which he proposed to testify. While the witness did state that he did not know the extent of the authority of McCarley, yet he does state that his information as to the duties and authority of McCarley was obtained not only from McCarley, but also in the instructions that he received from the appellant company at the time of his employment to represent it as its general agent for Texas. Nor was there error in admitting the testimony of appellee to the effect that she showed the said Alcott the bill of sale, and told him all about the transaction, and how she got it, and that it was no account, that the stock was not there, etc., and, further, that she told Alcott about McCarley's promise to let Mann continue...