Worsham v. Vignal

• Decision Date: 30 September 1896
• Citation: 37 S.W. 17
• Parties: WORSHAM v. VIGNAL.
• Court: Texas Court of Appeals

37 S.W. 17

WORSHAM v. VIGNAL.

Court of Civil Appeals of Texas.

September 30, 1896.

Appeal from district court, Clay county.

Action by John Vignal against W. B. Worsham. Judgment for plaintiff, and defendant appeals. Affirmed.

The amended petition was filed March 19, 1894. The original petition is not copied in the record, and the amendment does not show when the original was filed; but defendant's trial amendment says that the original suit was brought August 30, 1890. The amended petition, containing three counts, charges defendant, W. B. Worsham, with conversion of plaintiff's four-fifths of 126 head of cattle, all owned by him and one Joe Johnson, the latter owning one-fifth of the 126 head, many of which were branded V X on the left side. The first count charges that the cattle were owned jointly by plaintiff and Johnson in the proportions stated, the cattle consisting of 65 head of one year olds, 35 head of two year olds, and 26 head of three and four year olds; that on the 1st day of October, 1888, defendant fraudulently combined with Johnson, and induced him to sell and deliver to him, Worsham, without consideration, all of the cattle, without the knowledge or consent of plaintiff; that Johnson then executed to defendant a bill of sale of all the cattle, the bill purporting to be executed by the firm of Johnson & Vignal, and that pursuant thereto the cattle were delivered to defendant, without the knowledge or consent of plaintiff; and that defendant unlawfully took possession of the same, sold and appropriated them to his own use, without ever paying plaintiff anything therefor. The date of the sale and appropriation by defendant is not alleged. Wherefore plaintiff asks for his damages. The second count avers that plaintiff and Johnson were the owners of the cattle, which were then and there their partnership property, and were in the joint possession of plaintiff and Johnson, owned in the same proportions as above alleged. The same fraudulent sale is alleged by Johnson to Vignal, to deprive plaintiff of his interest therein without his knowledge or consent, and that, acting under the fraudulent sale, defendant took possession of the cattle, and sold, disposed of, appropriated, and converted them to his own use. Prayer for damages. The third count alleges joint ownership and possession of the same cattle by plaintiff and Johnson, in the same proportion stated, the same fraudulent combination, and fraudulent sale by Johnson, and delivery to defendant without plaintiff's knowledge or consent, and appropriation and conversion of the greater portion of them, and that defendant has sold and disposed of the greater part of the cattle, and has used and appropriated the whole amount received by him therefor to his own use and benefit. It is alleged that defendant still has a small number of the cattle in his possession, which number plaintiff is unable to definitely state. It is averred that Johnson is insolvent, and was at the time of the alleged transactions. Plaintiff prays for his damages, and for partition of the cattle unsold in the possession of defendant. No specific date is stated of the sale by defendant. March 24th defendant demurred to the various counts in the amended petition,— that the second and third counts set up a new cause of action, and were barred by limitation of two years; filed a general denial and plea of statute of limitation of two years; and specially that plaintiff and Johnson were partners, and that defendant bought the cattle from Johnson, as of the firm, in good faith, and that plaintiff never denied Johnson's right to sell the cattle, and knew of defendant's possession and sale of the cattle long before suit, and before defendant paid for them, and never asserted his claim thereto or to the purchase money thereof, but failed so to do until the institution of this suit, and that he ought not now to be heard to claim the same. March 24, 1894, plaintiff replied to the answer, declaring that the amended petition set up no new cause of action, but reaffirmed the matter as originally declared on. Further replying, he says that the cattle still undisposed of by defendant and in his possession are in the joint possession of both, and the possession of defendant is the possession of plaintiff. October 8, 1894, the following agreement between the parties was filed: "It is hereby agreed that the plaintiff's original and first amended petitions, as originally filed, described the cattle in controversy as `all branded V X on the left side,' and that, just before going to trial in this cause, on this day, the plaintiff's attorney was allowed to interline said amended petition so as to read, `That many of said cattle were branded V X on the left side,' which change in description relates to all the counts in plaintiff's amended petition, and that, in considering the question of limitation as to said cattle not correctly described before said interlineation, the same shall be considered the same as if such change had been made by an amendment filed this date. And it is also agreed that plaintiff, in his original and amended petitions, alleged said cattle to be about 105 head, whereas, by interlineation, he has changed the number to about 126 head, and that the same rule as to limitation shall apply to the increase of numbers, and that the defendant's pleas to the jurisdiction as now filed be considered as filed to said changes the same as they could be filed to a trial amendment, and that defendant may file additional pleas of limitation during this trial." Pending the trial defendant filed a second trial amendment, October 9, 1894, alleging that the suit was erroneously brought for conversion of 105 head of cattle, all branded V X, and no change was made as to the number or description of the cattle until October 8, 1894, as shown by the agreement, when plaintiff seeks to recover cattle branded other than V X, and for 126 head of cattle. Wherefore he pleads bar of the two-years statute of limitations as to the cattle not branded V X, and as to the 21 head exceeding the 105 head originally sued for. October 8, 1894, plaintiff filed a trial amendment,—that the 21 head of cattle not included in the original petition were converted by defendant on the, to wit, 1st day of November, 1892; that he cannot describe them more particularly than he has because the cattle were in the possession of defendant, and plaintiff has not had access thereto, etc. September 11, 1894, the court heard and overruled all of defendant's demurrers to petitions then on file, and, October 8, 1894, the court overruled defendant's demurrers contained in his trial amendment filed October 8, 1894. October 9, 1894, upon return of verdict in favor of plaintiff for $869.76, the court rendered judgment for him for that amount and costs, except costs of former appeal, and interest at 6 per cent. from date of judgment. Defendant has appealed, and insists on 16 assignments of error.

A. K. Swan, for appellant. J. A. Templeton, for appellee.

COLLARD, J. (after stating the facts).

The first assignment is that the court erred in overruling defendant's demurrers, as contained in his second amended answer filed March 24, 1894. The second assignment is that the court erred in overruling defendant's objections to plaintiff's first trial amendment, for the reason that the objections, exceptions, and demurrers were well taken. There is but one proposition under these two assignments, which is that the "amended petition, setting up new matter or cause of action, is subject to the plea of limitation as to such new matter." We think the proposition should not be sustained as attempted to be applied in this case. The averments of the original petition, as to time of conversion and the facts relied on to show conversion, are not shown. The averment that they were all branded V X on the left side is matter of description, and was amendable, and the amendment in description did not constitute a new cause of action. The original petition only claimed that there were 105 head of cattle, and the suit as to the 21 head would be a new cause of action; but the trial amendment to meet defendant's plea of limitations shows that they were converted within two years before the first amended petition was filed. So the item for conversion of the 21 head was not barred by the two-years statute. The date of the conversion is not alleged in the first amended petition. The date of sale to defendant is alleged, but not the date of conversion. When this case was before the court of appeals for the Second supreme judicial district, it was held that the sale by one joint owner of the cattle would not be a conversion, but that the vendee would become a joint owner with the other co-tenant, and other facts would be required to show a conversion. Worsham v. Vignal, 5 Tex. Civ. App. 473, 24 S. W. 562, citing Trammell v. McDade, 29 Tex. 361 et seq., and other authorities. We believe the court announced the correct rule.

Appellant presents his sixth, seventh, ninth, and thirteenth assignments of error together. The assignments, respectively, complain of the fourth and seventh paragraphs of the court's charge, and the refusal of special charge asked by defendant. The court's charge complained of requires the jury to find that the conversion and appropriation of the cattle by defendant must have been within two years prior to the filing of the petitions, original and amended, before they could find for plaintiff, as otherwise they should find for defendant on the plea of limitations. The court, following the decision of the court of civil appeals, did not make the conversion of the cattle depend upon the alleged fraudulent combination and sale of Johnson to Worsham, but upon appropriation by Worsham of the cattle to his own use and benefit; and he instructed the jury that, in considering the plea of limitation, such conversion must have been within two years...