*1 , аppellants. Appellees questions were in no wise the stolen identifying cattle. negligent respect to the loss of their questions Some of the propounded ap- They were, cattle. pellees’ were stolen some of the and witnesses suggestive and by thieves the theft leading respect admitted and testified to the brands on the deposition Penitentiary But, from Texas State. cattle stolen. we think taking. the they ap- stealing where were confined record as a whole we would not be war- pellees’ cattle. that the We concluded ranted in reversing the judgment in this majority rule set out in the authorities case for such opinion error. It is our cited last above is the correct one and is complained the error of not amount to controlling here. This is overruled. denial rights appel- reasonably lants as was calculated cause By points appellants complain several of probably and did cause the rendition of an refusing the action of the trial court in improper case, judgment in the nor was it speciаl jury submit to the several issues of such probably prevented nature as ap- requested by them submitting definition ,a pellants from making presentation conversion, proper they (appel- of that whether of the case to this court. T.R.C.P., Rules of lants) unlawfully and wrongfully exercised 434, par. 2, 503, par. 2. dominion over the cattle to the exclusion of the owners. As аbove the facts with stated points have examined all other respect cattle, to the theft their sale of by appellants opinion advanced and in our Rosson, delivery to Preston and of the they merit are without and are overruled. by Campbell appellants, cattle the Com- judgment of the trial court is affirm- Texarkana, Texas, mission ed. by appellants and the sale of cattle said disputed, are in no wise reason
the trial court did not commit error in fail-
ing requested to the jury submit
special undisputed issues. The conclusively appel-
in this case shows guilty were matter of
lants as.a law of con- appellees’ their version BLANTON v. SHERMAN COMPRESS CO. Abernathy, cattle. In Hunter v. 188 S.W. 14601. No. “Any 269, person guilty it is said: is Appeals Court of Civil of Texas. Dallas. wrongful property conversion of who aids Feb. 1953. mortgagor and assists in so disposing proceeds thereof toas defeat the Rehearing Denied March 1953. therein; mortgagee’s interest do exempt operar not think from the rule reason of
tion this the fact
that he factor or was a commission mer- stronger cases cited. For a
chant.” See
reason, here, appellants guilty would 'be of the cattle their act
conversion of sell- public general and remitting same proceeds Rosson, Preston buyers cattle,
original stolen thus principals placing
aiding their the stolen beyond appellees, the reach of
cattle points These
true owners. overruled. points
Appellants assert in other should be reversed for judgment
this permitting erred in
reason leading counsel to ask certain
appellees’ *2 Brown, Keith and Paul N. both of Joe
Sherman, appellant. for McKinney, Abernathy Abernathy, & Wolfe, Freeman, Bryant, Henderson & Sherman, appellee. for
DIXON, Chief Justice. appeal
This an from an order overrul- appellant’s ing privilege seeking appellant’s suit transferred to res- have the idence, County, Appellee Cooke Texas. Grayson County maintain venue in seeks to ground appellant on the committed a Grayson County, within the mean- 1995, R.C.S., of subdiv. of Art. Ver- Ann.Civ.St. art. subd. 7. Here- non’s appellee bewill referred to as after appellant as defendant. tiff and Plaintiff, corporation, operates a com- Sherman, press at Texas. It alleges types of two cotton: it handles concentrat- and transit cotton. Its cotton tariff ed type is latter much less than handling the former. «86 Blantоn, Sr., on that cotton. A. He * * * in- corporation during all the time did. to the com- came press
volved
L. Blanton
expected
herein. Defendant
told me
Blanton, Sr.,
quite
but at all
is a son of L. O.
handle
through
lot of cotton
*3
Sherman;
stranger
times
he was a
involved herein
that he
his-
had talked with
corporation
father,
any
so far as
official
that
get
weighing
to the
we would
visit the
tion relied on to constitute fraud are
than in Sherman.
Plaintiff’s
poration, lived in Dallas and did not
follows:
connection
fact
Sherman,
most
Blanton, Sr., president
company’s
pleadings
of the officers lived elsewhere
was the
concerned.
S.
office
A.
company’s manager.
Grafft,
misrepresenta-
Sherman;
a resident
the cor-
often
mаn
that that was
sir.
any
Blanton on cotton handled
the cotton moved out
* * * I
“Q.
me
compression
Compress
concessions were made to
of what
*
[*]
was under the
Mr.
*
Roy
for that season. A. Yes.
and/or
Blanton’s
State whether or
told me.
flat removal if
uncompressed.
instructions,
impression
the Sher-
Roy
not
place
“At said time and
the defend-
“Q. What were those concessions.
Grafft,
represented
ant
to the said
A.
storage
and the
plaintiff,
that his father had
to this
* * *
charges were waived.
agreed that
the defendant would
“Q.
Grafft,
you
Mr.
that
known
cotton,
charged transit
rates for his
Roy Blanton did not have his father’s
though the cotton was to be handled
permission
concessions,
to receive these
cotton.”
and treated as concentrated
state whether
not
or
the concessions
appeal is
Defendant’s main
on
* * *
granted.
would have been
light
plain-
favorable
viewed in a
most
I
granted any
A.
wouldn’t have
con-
tiff,
support
offered in
cession without
from some-
as a matter of law to
above
fails
pleading
for;
one that I was working
Mr. Blan-
fraud. This
makе out a case of actionable
else,
ton or someone
some
other
correct,
contention,
require
tous
officials.”
trial court overrul-
reverse the order of the
Roy Blanton, up
Grafft also testified that
privilege. Austin v.
ing defendant’s
instructions,
on his father’s
grant
had been
Stores, Tex.Civ.App.,
Grissom-Robertson
ed similar
during
concessions
the seаson of
887 de- representation of a Roy telling Blanton false is the a bill so he had sent in 1951 * * * intentional, But liberate talked lie. difference, he had for the representation lie direct need not be a matter. Roy about Blanton fraud; order to remedial constitute testimony: quote Again from representation de- may false consist in a “Q. was said. State what ceptive answer, indirect or other course, told them—of asked what I me Tex. misleading language.” also See 20 Directors, I Board of referring 158, 159. Jur. told I told assume—and I In Hel California case of Sullivan me, just told what he had them bing, 803, 805, Cal.App. 478, de 226 P. I father and had talked *4 fendants, to es exchange induce an of real transit the cotton on was handle the tate, expressly represented prop that the basis, waive the erty present per was under rental of $155 (and the) storage. the month. It was the lease admitted that “Q. say at that And he what did agreement rental, provide did for such time me at that time? A. told further that the rent was secured chat just him that his father had not told tel mortgage machinery. on certain These (cid:127)exactly him to see me do—for what to representations were true. But defendants arrangements he whatever and that failed mention that the tenant had never sаtisfactory. made with me would be paid any sum, any greater sum nor 1951, “Q. July that time in Prior to month, than per the difference in $135 you any in he ever indicated to having amounts been rebated defendants. have his father’s way not The court action held facts constituted No, permission? A. sir.” recovery able fraud and allowed a in dam ages. In so deciding, the said: rule, Undoubtedly as general representations may “Fraudulent consist contends, be fraud will not (cid:127)plaintiff is that half-truths calculated to deceive.” Hoover, Tex.Civ. v. .presumed, Whitsel (wr.dis.); and that 930 .App., 120 S.W.2d Readon, In the Colorado case of Cahill v. susceptible in contrary are where facts 9, 85 653, repre Colo. 273 P. the defendant ferences, dealing rather honesty and fair sented that there had been oil an boom preferred. be and deceit will than subsided, which had and that values had Ely, Tex.Civ.App., S.W.2d 53 v. Fletcher literally become stabilized. This was true. ; Campbell, Tex Hawkins v. (wr.ref.) 817 statement; But there a in was catch N.R.E.). (wr.ref. 891 .Civ.App., 226 S.W.2d zero, value had been stabilized at whereas the statement was made with the circum believe the However we intent to convince it was a application call for (cid:127)stances here per stabilized at month. The court $100 differentrule which in support has found held that this was actionable fraud. C.J.S., authority. said in 37 respected As * * “* repre 17, a Fraud, p. Crompton Beedle, 251: 287, In 83 Vt. 75 § if used literally 334, 748, is actionable 331, L.R.A.,N.S., true A. 30 sentation the court substantially quotes false”. impression approval Campbell an Lord :to create in an English equity only case: single That not directly no Texas cases findWe word, “a nod or a wink or a shake of from our there are utterances point, (cid:127)in head, or purchaser, a smile from the in direction. As which courts might application princi- defeat v. First National Ten-Cate sаid was ple part mere reticence on the of a 326, Tex.Civ.App., 52 S.W.2d Bank, purchaser does not law amount from artifice and con- deducible ‘“Fraud is fraud.” n con as from affirmative well as cealment In 25 Cor In the case at bar to deceive. we think character of a duct ‘Fraud,’ defendant’s utterances taken together under title of p. рus Juris, * * surrounding plainest case all the circumstances shown in zitis'said: record, question, entitling raised a fact points complains Defendant in several that, except to a trial on on the issue testimony the merits improperly ad- of fraud. mitted; there is no evidence that A. L. Blanton, Sr., are Texas in aware that in question concessions in to his ordinarily tent is not element an essential son; Grafft, hence manager,' should exceptions But there fraud. ignored the son’s even if statements “ * * * defining rule. the cases fraudu he thought they were instructions from the frequently lent include the concealment president. There is that L. ‘knowledge’ terms ‘intent.’ Indeed the Blanton, Sr., had such and had implies suppression word ‘concealment’ been exercising years it for several of that which is known.” 20 50. Tex.Jur. granting similar concessions not to his Compaghie See also Des Metaux Unital v. son per- but to several other Co., Tex.Civ.App., Mfg. Victoria 107 S.W. sons. Defendant himself testified that he intent is inherent in 651. We believe that first went permission to his father to obtain very sought of the fraud nature for the handling of his cotton at reduced proved by plaintiff in the case now before rates, and that his father in effect dele- intent, us. If there no there was no *5 gated authority to Grafft the to the make said, been well actionable fraud. As has decision. Defendant claims that is this “Recovery had for true state cannot be what he told Grafft. Under the circum- ment misunderstood design without оr fault stances hardly position is defendant in to (Emphasis ours.) 37 C. speaker”. the of claim that his father did not have the au- J.S., Fraud, 17, p. 251. § thority grant to concessions. There were no resolutions of the Board of Intent, mind, Directors being of a state or other records introduced as to prove. such au- often difficult to It has been said thority, but the evidence in the record was person’s that a state of mind cannot be by adduced the defendant proven on cross-exami- by direct evidence from others. nation of by Grafft plaintiff as well as on incapa But the matter this does not render case, direct being examination. Such the proof. presence ble The absence of a of or appellant we overrule points. on these may proven by certain state of mind be cir cumstances. Dallas Stock Land Bank We have considered points all other Joint 890; Lancaster, Tex.Civ.App., 91 S.W.2d by defendant, raised but as we do not be- Corrigan Corporation, v. Shell Petroleum they taken, lieve they well are over- Tex.Civ.App., 663; 62 S.W.2d Peerless Oil ruled. Teas, Tex.Civ.App., 138 & Gas Co. v. S.W. The order of the trial overruling court 320, it is said: 2d 637. In 20 Am.Jur. plea defendant’s privilege of is affirmed. * * * fraud, issues of and “Whenever On Motion for Rehearing. raised, the evidence must good faith are range may rather and embrace take a wide In his motion rehearing for defendant go circumstances which all the facts and points to the third tо .the paragraph last in transaction, up disclose its true make the to opinion says our and that we have mis- , character, parties, explain the acts of the him; understood place that in no in his objects light on their and inten and throw brief has made contentions as to the tions.” authority lack president of of the plaintiff corporatiоn to grant concessions overruled trial court Since the from the so-called tariffs. us, in case before privilege of the the challenged The paragraph .was written that the court found in presume must response in points, to these which are re the issue of as to way on such copied appellant’s from brief: County. Grayson 'be We venuе tain “(1) all the into erred taking court consideration permitting plain- that lieve thq by manager, Grafft, disclosed tiff’s testify to circumstances facts the sup president Company to; was sufficient record, the instructed him along what to do things different finding. pertain- port such
«89
tell
president,
to
could
what
direction of
who
him
tell
and could
charges,
to
n do
it in
him what to do and when
do
to do it.
and when
granting
concessions. Whatever
matter
permitting
erred in
“(3) The
may
testi-
been,
Grafft
testify
not-
Grafft, to
manager,
tiff’s
fact
fied
he did not himself in
over
take
withstanding his
was to
concessions',
they
granted
were
n expected Mr.
compress, he
manage
president
only because he believed that the
Sr.,
to direct
president,
by
had
him
defendant
sent
instructions
all times.
compress at
operation of the
that effect.
proved, as al-
“(4)
if
had
Even
says
erred in
Defendant also
that We
told Grafft
had
leged, that
defendant
overruling his
“Plain-
Seventh Point that
(defend-
Company
president of the
injury.”
tiff has not shown that it suffered
father)
that defendant
agreed
ant’s
cotton,
theory
it
charged transit rates
Plaintiff’s
the сase is that
representations
be handled
was induced
false
cotton was to
though the
still,
cotton,
a charge
as
for han-
concentrated
its rates
treated as
cotton,
law,
whereas,
dling
not constitute
transit
this would
matter
representations,
charged
de-
would have
fraud.
higher
fendant its much
rate for
alleged,
prove,
did not
“(8) Plaintiff
concentrated cotton.
The difference
subj
the direction
Grafft was
ect to
total,
two
amounted to a
according
rates
control
plaintiff,
$9,470.37.
plaintiff’s
charged
fixing prices to be
customers.”
Defendant counters
saying
attempted
higher
ob-
especially
We call attention
defendant,
rate, he,
would have sent
jection
in the first
*6
elsewhere,
оr in
event would
cotton
president
what
tell him
“could
greatly
plain-
have
reduced
volume and
his
it,”
statement
do and when to do
and the
part
tiff
would have
great
thus
lost all or a
plaintiff did
eighth
cotton
defendant’s
business for the sea-
“not
prove,
that Grafft was
alleged,
poor
As it was a
son.
season and
subject
and control
direction
meet,
tiff had fixed оverhead charges
prices
president
fixing
plaintiff badly
would have hurt
if it had
plaintiff’s
charged
customers.”
business,
not obtained
even at
defendant’s
points re-
It
to us that
four
seemed
the lower rates.
up
produced above set
contention that
It is true that defendant testified
obligation
prove
had the
he would
sent
his cotton elsewhere or
prove
competent
failed to
testi-
bad
have,
plain
reduced
if
volume
company
mony that the
attempted to tiff had
him higher
authority
con-
to order
to make
Grafft
rates; and no one. contradicted his state
If
cessions from the
tariffs.
we
so-called
But defendant
par
ment.
is an interested
misinterpreted
points,
meaning
ty
alone,
though uncon-
сlarify
glad
we are
the situation
stat-
tradicted,
raised
a fact issue to be de
having
disclaims
“ad-
at
trial on
termined
a
the merits
vanced the contention to the effect that
jury.
Vandaveer,
court or the
Seaboalt v.
corporation
president of a
does not have
Tex.Civ.App.,