Western Cottage Piano & Organ Co. v. Anderson

• Decision Date: 24 October 1903
• Citation: 76 S.W. 945
• Parties: WESTERN COTTAGE PIANO & ORGAN CO. v. ANDERSON<SMALL><SUP>*</SUP></SMALL>.
• Court: Texas Court of Appeals

76 S.W. 945

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

Court of Civil Appeals of Texas.

October 24, 1903.

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

Action by 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.

CONNER, C. J.

This suit was begun in the district court of Tarrant county on the 10th day of June, A. D. 1902, by appellee, B. E. Anderson, seeking to recover of appellant, the Western Cottage Piano & Organ Company, the sum of $465.65, alleged to have been advanced or paid by appellee in the discharge of an indebtedness in that sum of one John F. Mann and associates to appellant, on the faith of certain alleged representations of the agent of appellant as to the solvency of said Mann and associates, and on the faith of the sufficiency of a certain chattel mortgage held by appellant against said Mann as security for said indebtedness. Appellee alleged that said alleged representations were knowingly, maliciously, and fraudulently false, tendered back said chattel mortgage, and asked for the recovery back of said sum, and also for the recovery of exemplary damages in the further sum of $1,000. The cause came to trial on October 16, 1902, before a jury, resulting in a verdict in favor of appellee for the sum of $465.65, with interest at 6 per cent. per annum from January 31, 1902, as actual damages, and the further sum of $500 as exemplary damages, and judgment was accordingly rendered for said sums. Appellant moved in arrest of judgment, as well as for a new trial, which motions were overruled, and appellant appealed to this court, assigning errors.

We find no reversible error in the action of the court in overruling appellant's motion to quash the sheriff's return on the citation, and in retaining jurisdiction to try the case. Nor do we find error in the court's rulings on demurrer, or in the introduction or rejection of evidence, or in charges given, or in the rejection of requested charges, and find no question in these particulars that requires discussion. We think appellee's petition sufficiently presents a case of fraud and deceit that entitles her to both actual and exemplary damages, and that beyond question the evidence on the issue of actual damage is sufficient to establish the material allegations of appellee's petition and to support the verdict. The only question presented about which we have hesitated is whether the evidence authorizes the charge, and supports the jury's finding, on the issue of exemplary damages. The verdict in this particular is not directly complained of as disproportionate and excessive, but it is insisted that the nature of the case is not such as to authorize the imposition of exemplary damages, and that, if so, the evidence wholly fails to show that appellant's agent, J. B. McCarley, acted maliciously or fraudulently in making the representations charged, or that he was such agent as made appellant liable for his malicious or fraudulent acts, or that such acts were ratified with full knowledge of the facts.

While we find no such evidence of ratification on appellant's part as would impose on it punitory liability, we think the evidence abundant to show that McCarley was one of the principal officers, if not the superior officer, in Texas, of the appellant corporation. Mrs. Anderson testified that McCarley represented the company in the transactions she had with him; that he was the company's state agent, and had charge of all their...