*1 GARCIA, Appellant, Robert RUTLEDGE,
Frank d/b/a Frank’s Truck Tractor, Appellee.
No. 9381. Texas, of Appeals
Court
Amarillo.
Sept. 14, 1982.
Rehearing Denied 1982. Oct.
309
BOYD, Justice. Appellant brings ap- Robert Garcia this peal from a rendered non obstan- appellee te veredicto in favor of Frank Rut- ledge. The suit arises from an alleged fail- ure on the part properly *3 repair a truck belonging to Garcia. As Garcia, originally alleged filed the suit a warranty, Decep- breach of violation of the Act, tive Trade Practices conversion and prosecution. Upon jury malicious trial the found that had breached his war- ranty repair the truck and had converted the points truck. Garcia raises four of al- leged error. For the reasons hereinafter set out we the judgment reverse of the trial court and remand the case for another trial. In point alleges his first Garcia that there was legally supporting sufficient evidence jury verdict as to warranty. breach of In point, spe- his second he asserts that no cial issues were by Rutledge submitted on alleged his defenses to breach warranty of and, since defendant failed to establish the law, defenses as a matter of judgment for Garcia should have been rendered based on the jury counterpoint, verdict. In his first Rutledge asserts Garcia cannot recover on the breach of warranty because Garcia failed to perform a simultaneous condition contract, viz., payment of the con- think, price. Logical tract we continuity, requires points discussion of these and the counterpoint together.
To sustain the action of the trial
court in granting
the motion for
verdict,
notwithstanding the
it must be de
termined that
there is no evidence
jury
could have made its find
ings.
motion,
acting upon
In
all evi
light
dence must be considered in a
most
verdict,
support
favorable to
jury
Whittenburg,
Schachter,
Whittenburg &
every reasonable
intendment
deducible
Mullin,
David
Burnette,
Susan L.
David
indulged
from
evidence is
be
in favor
Whitten, Amarillo,
appellant.
in
Only
verdict.
the evidence and
Ratliff,
Kirby,
Sansom, Manning & ferences
support
jury
therefrom that
Greak,
Sansom, Littlefield,
Ted L.
for ap-
finding should be considered with all con
pellee.
trary
being reject
evidence and inferences
Co.,
ed. Dodd v. Texas Farm Products
REYNOLDS, C.J.,
Before
and COUN-
S.W.2d 812
A
not
BOYD,
TISS and
JJ.
withstanding
only
upheld
verdict can
be
when
rendition
a directed verdict would
Failure of consideration is a de
have
proper.
been
Tex.R.Civ.P. 301.
specifically pled
which must be
fense
defendant. Tex.R.Civ.P. 94. The salutary
in a light
Viewed
most favorable
of this rule is to
verdict,
purpose
require
defend
the evidence shows
September
pleadings
ant
announce in
what his
took
Garcia
his truck to
Rutledge’s garage
repairs.
On
any
October
defense will be if
includes
31, 1979,
picked
he
up
paid
Rule,
in the
give
matters referred to
and to
repair
$3,302.34
bill
with a check. Rut-
plaintiff
of knowing
the opportunity
ledge
given
day
had
a 90
on
proof
may
what character of
need to
work.
immediately began having
pled.
meet
defense
Reid v. Associated
problems
compres-
with the
truck.
air
(Tex.Civ.
Employers Lloyds,
S.W.2d 584
air,
sor
pump
didn’t
the exhaust emitted
ref’d).
App.
Worth
writ
In the
— Fort
white smoke which was not characteristic of
plea
absence
such a
of fail
diesel engines,
the engine
strange
made
*4
ure of
is not
a review
consideration
before
noises
pressure
and
oil
The
was low.
court,
Leal,
ing
Leal v.
While it difficult Rut- from ment commenced ledge’s argument, analysis close reveals work. is, essence, plea of a of failure parties The themselves acts of excusing
consideration his non-perform- place upon ance. indicating they the construction value of their labor paired by contract is the evidence and enti them for the highest provision tled to if This great controlling weight. not done or material furnished. Co., Lone the lien X-Ray Star Gas v. Gas 139 Tex. is and exists inde self-executing, 546, 164 (1942). It is there any legislative from pendently apart infer, fore that the reasonable to intent of Hayek Company, act. v. Steel Western parties obligat lien, however, was that Garcia was not This (Tex.1972). S.W.2d 786 ed pay repairs completed, until the were to take repairman does not authorize thereby making proper completion of repaired and hold it possession of the article the repairs a condition to the precedent McBride paid. until his are charges obligation of pay for the re (Tex.Civ.App.— Beakley, 203 S.W. pairs. A precedent” 1918, n.w.h.). contractual “condition right to this Amarillo events, has been “those defined as acts or lien, may be foreclosed constitutional making which occur to the subsequently Courts, of any right pos in the to retain a contract that must occur before there is a paid is are two sepa session until the debt right to immediate and before performance Paul v. rights. rate and distinct Nance there is a breach Ho duty.” of contractual (Tex.Civ. Buick S.W.2d 426 Company, 487 henburg George Co., Bros. v. E. Gibbons writ). & Appellee’s App. Paso — El S.W.2d 1 Since the must, necessity, defense then rest finding Rutledge had breached his any given him Article possessory right repair supported is suffi 5503, Tex.Rev.Civ.Stat. evidence, cient necessary implication gives repairman Article 5503 this is that failed to fulfill *5 of the arti right possession” “to retain precedent condition to receiving pay However, cle it is well estab repaired. obvious, therefore, ment. It is that Garcia’s possession to retain right lished that not, law, failure to pay did as a matter of voluntary is lost on given by this statute any establish to the defense breach of war to the vehicle the owner where delivery of ranty. Appellant’s point first of error is possession no is involved. obtaining fraud granted as is appellant’s point of error two Equipment Company, Hydraulic Texas & to the extent hereinafter set Appel- out. Corporation, 414 Inc. v. Associates Discount lee’s counterpoint first is overruled. 1967, (Tex.Civ.App. no S.W.2d — Austin three, point In appellant of error asserts Also, coming writ). possession into the part error on the trial court in disre- original vol again vehicle after garding finding jury Rutledge con- lien is not untary delivery, garageman’s verted the belonging to Garcia since Supply Auto & revived. Caldwell v. Sales there legally was sufficient evidence sup- Co., S.W. — Austin porting such In finding. point appel- four evidence in this ease writ). no The alleges that, lant appellee since submitted that, upon delivery of the clearly establishes no jury alleged issues on his defenses to check, truck was voluntar possession of the and, conversion since failed to establish however, Rutledge, ily returned to Garcia. law, his defenses as a matter of by bad check makes argues payment was entitled to for such conver- as a involuntary or conditional delivery sion. In counterpoint, appellee his third this authority matter of cites as law and that, asserts to contrary, his continued 2.511(e) 2.507(b), and contention Sections possession appellant’s of the truck after de- Code. For Texas Business and Commerce justified mand for its return was as a mat- above, not we do believe the reasons stated ter think Again, logical of law. we continu- apply of the Code provisions these ity requires points of these and discussion Therefore, believe, we un this transaction. counterpoint together. in question less the check giving prevent
Article
Section
of the Tex
amounted to fraud sufficient
rule, Rutledge
mechanics,
gives
general
as Constitution
artisans
invocation of the
lien when
possessory
was
upon
and materialmen
lien
articles re-
not entitled to a
the truck was
and,
returned to
son,
him
the legislature limited
provision
this
failure to return the truck was a conver
continuing
solely
lien
to cases where
sion.
“payment
stopped
check, draft,
is
on such
or written order.” We think the language
Fraud is an affirmative defense under
quite
is
clear and the distinction obvious
and,
Tex.R.Civ.Pro. Rule 94
unless estab
between a
check
which payment
is
law,
lished as a matter of
the burden was
stopped by affirmative action of the maker
upon Rutledge not only
plead
the defense
and a check returned
unpaid
bank
but to obtain jury findings to establish the
because of insufficient
funds.
grant
necessary elements of this defense. Oil
points of error three and four to the extent
Division,
Well
United States
Corp.
Steel
hereinafter
set out and overrule counter-
Fryer,
487, 490
(Tex.1973). Rut
point three.
ledge did
plead
not
this defense or obtain
any jury findings in
Now,
think,
connection with it.
we
logical continuity requires
Our inquiry, therefore, must be directed to
a discussion of Rutledge’s counterpoint two
ascertain if it is established as a matter of wherein he asserts
has shown no
loss
law.
or damage from
A
warranty.
breach of
more detailed recitation of the evidence
It has been stated that fraud is an elusive
presented
only
length
would
add to the
and shadowy term which has been defined
the opinion.
say
it
we have
Suffice
in some cases as “any cunning or artifice
carefully reviewed the evidence in the case
used
another,”
to cheat or deceive
and that
support
find it sufficient to
is synonymous with bad faith-over
point. Appellee’s
on this
coun-
reaching
Sims,
and dishonesty. Kinard v.
terpoint two is overruled.
Rutledge presents also the ingen ious argument provision that that of Article evidence in the record on loss of only 5503, providing for continuance of the lien appellant use of the truck was from Garcia. when payment has been made a check point He testified at one that he could upon payment which is stopped, applica per day using is “make” three hundred dollars ble in this case. payment He submits that could have used it six to truck and “stopped” is purview within the of the stat days seven a week. He later testified he ute when the pay bank refuses to and that figure by figuring arrived at that what good no reason exists for a distinction hauling be made a week or month since his tween a direct stop payment varied, making order to on one two hun- income sometimes hand, and “placing per day in the account of The amount per day. dred dollars insufficient payment according many funds for on the oth how loads were varied to hauled, hauled, agree. er.” We cannot For whatever rea- the num- many pounds how ber involved, of miles etc. is no There We think we are compelled grant ap- to testimony fuel, as to the expense pellee’s counterpoint four as it re- employ- insofar ee’s wages jury’s lates to the answer truck, special attributable to the to issue 6. Since we have other concluded that the trial court overhead factors. justified
was not
granting
in
It is
that,
well established
as an
veredicto,
non obstante
and the evidence
special
item of
damage, the value of the loss was insufficient
to
support
use,
use of
jury
converted
as to loss of
we think it
personalty, may be
necessary
awarded.
to reverse the
It
is also
case and remand
true that
is not
for a new trial.
essential that
Tex.R.Civ.Pro. 434.
the value be shown with abso
lute certainty. Latitude is allowed in deter
OPINION ON MOTION FOR
mining damages where there is
precise
no
REHEARING
measurement,
object
being to award the
Upon original submission we found the
owner actual pecuniary compensation for
evidence insufficient
support
Traders,
loss. Texas Tool
Mosley
Inc. v.
answer to Special
jury
Issue 6 in which the
Co.,
Machinery
(Tex.Civ.
S.W.2d 229
$6,000.00
awarded
for loss of
App.
writ);
no
International
— Waco
and,
use of
his truck
based
that find-
Great Northern R. Co. v. Casey, 46 S.W.2d
ing,
Appel-
remanded
case for re-trial.
669 (Tex.Com.App.1932).
naturally
It
fol
lant has now filed a
rehearing
motion for
lows,
think,
that,
we
in order to award
right
he waives his
for loss
recover
Garcia actual pecuniary compensation, the
of use of the
question.
truck in
He now
expense of operation of the truck must be
us,
verdict,
asks
in accordance with
deducted from
gross
earnings
to render
in his favor for the
would have been made from the truck.
$3,600.00
difference between the
$297.66
Universal Credit Co. Wyatt,
amount awarded to him as the cost of reme-
487 (Tex.Civ.App.
1933, writ).
Paso
— El
dying the breach of
less the
expense
This
data is something that could
$3,302.34
amount awarded
for his
have been
shown Garcia with a reasona
trebled,
customary charges,
usual and
or a
ble degree of certainty and exactness.
$892.98,
$2,500.00
plus
total of
attorneys’
In support of
proposition
fees,
$3,000.00 for
plus
the value of the
evidence is sufficient
support
the finding
truck,
together with interest and court
of the jury, Garcia cites the cases of Harper
below,
costs. For
explained
reasons
we
Building Systems
Co.,
v. Upjohn
grant appellant’s
judg-
motion and render
123, 126 1978, ment as hereinafter stated.
— Beaumont
writ
n.r.e.)
ref’d
Howard,
and McDuff v.
contends,
under the
Appellant
$1,000.00. As an was rein- seeking justified, individual services obstante veredicto not from appellee, qualifies required as a consum- verdict is statement (cid:127) Act, er under the in Tex.Bus. & Com.Code be rendered accord- judgment must 17.45(4), Ewton, Ann. and his net amount of § Jackson v. ance with verdict. is, damage $1,000.00. is under He there- previous The (Tex.1967). 411 715 S.W.2d fore, judgment entitled to for the actual net of is withdrawn and judgment this court damages $297.66—plus two times of this is directed to enter clerk court found — recovery total of of reversing judgment $892.98. our Appellant $2,500.00 is also entitled to the judgment for rendering the trial court and found by abe reasonable attor- $3,892.98, appellant Garcia the amount of neys’ fee. Tex.Bus. & Com.Code Ann. $2,500.00with plus attorney fees of statuto- 17.50(d). interest, § ry appeal. and costs of the suit
We next appellant’s consider
contention that he is entitled to $3,000.00
for the as value of the truck on
the date of conversion by jury. as found general rule is that the measure of
damages is property the value of the con
verted at the time of the conversion with legal Imperial Sugar interest. v. Tor Co. COUTEAU, Appellant, Clark raos, 73, 74 When plaintiff regained possession has v. trial, goods prior converted damages Texas, Appellee. of STATE to which he is will normally entitled be (1994 CR). 13-81-006-CR No. mitigated accordingly. Surety American Co. of New County, York v. Hill 254 S.W. Texas, Appeals Court of of affirmed Corpus — Dallas Christi. 265). 267 S.W. Appellant’s damages would Jan. 1983. ordinarily by subtracting be calculated Refused, Review Discretionary of regained value the truck at the time he 20, 1983. April possession from the truck at value the time of the conversion. Field Mun
ster, (Tex. Tex.Civ.App. S.W. 417
Civ.App.1895, Tex. err. dis. 89 S.W. However,
852). the burden is on de prove
fendant facts will authorize mitigation damages claimed Corp. v.
plaintiff. Mayo Towing Shell Lotz Co., 279 (Tex.Civ.App . —Galves n.r.e.).
ton writ ref. No issue as to
the value of the on the date its
return to and no appellant was submitted requested appellee. By
such issue was an request appellee
his failure to such issue
waived the 279. We issue. Tex.R.Civ.P. compelled
are therefore the conclusion is entitled of con
the value of the truck on date
version. Christi, Jr., Corpus Westergren, we have the trial Sam A.
Since concluded appellant. non granting court’s action in