37 S.W.2d 823 | Tex. App. | 1931
Appellant J. H. Killingsworth, a resident of Navarro county, Tex., sued appellees, General Motors Acceptance Corporation, hereinafter called Acceptance Corporation, and Hearne-Wilson Chevrolet Company, hereinafter called Chevrolet Company, both corporations, in the district court of Freestone county, and for cause of action alleged that appellees had unlawfully taken possession of his automobile and converted the same to their own use and benefit. He sought to recover both actual and exemplary damages for such conversion.
Appellant alleged that on or about October 25, 1929, the Chevrolet Company sold to him a Chevrolet sedan for $853.50; that the seller agreed to accept, and did accept, his old car at the agreed valuation of $425 in lieu of a cash payment; that the remainder of the purchase price was to be paid by him in monthly installments of $36 each, beginning on December 5, 1930; that the seller undertook to prepare in triplicate a contract embodying the terms so agreed upon; that the seller did prepare one copy of such contract by filling the blanks in its regular sales contract form according to such agreement; that the seller stated to him that the blanks in the two remaining copies would be filled in the same manner; that, relying thereon, he, at the request of the seller, signed the copy so prepared and two additional blank forms of such contract; that the seller delivered to him the completed copy and retained the two signed by him in blank; that *824 the seller, in violation of said agreement, filled out one of said forms signed by him in blank as aforesaid, so as to make the first installment of the deferred payments due December 5, 1929, and one each month thereafter. Appellant set out in his petition in detail the terms and provisions of said sales contract. Said provisions, so far as material herein, were that the deferred payments should begin on December 5, 1930; that such payments should be made at the office of General Motors Acceptance Corporation designated by it; that title to the property should not pass to the purchaser until the purchase money had been paid in full; that the assignee of such contract should be entitled to all the rights of the seller thereunder; that, under certain contingencies, not necessary to recite, the holder thereof might declare all unpaid installments thereon immediately due and payable; that, if the purchaser failed to comply with the terms thereof, the seller, or any officer of the law, should have the right to take immediate possession of the automobile and resell the same at public or private sale; that the proceeds of the sale should be applied first to the expense of retaking the property, and then to the discharge of the balance of purchase money then due; that any surplus after satisfying such demands should be paid to the purchaser; that, in case such proceeds were insufficient to satisfy the purchase money unpaid, the purchaser should be liable therefor. Appellant further alleged that on or about December 15, 1929, the Acceptance Corporation mailed a notice to him that an installment of $36 was due on said contract; that on or about January 5, 1930, it mailed him a second notice, claiming that $72 was then due on said contract; that representatives of the Chevrolet Company sent for him to come to their office in Wortham, and demanded payment of said sum of $72; that they agreed to store the automobile in their garage at Wortham until they could get the matter adjusted with the Acceptance Corporation; that they promised him he should not lose his automobile because of the substantial payment he had made thereon; that, relying on said representations, he left his car with them; that thereafter, on or about January 5, 1930, said corporations unlawfully took possession of his automobile and converted the same to their own use and benefit. Appellant further alleged that his car at the time of such conversion was of the reasonable cash value of $853.50, and sought to recover such sum as actual damages, and the further sum of $1,926.75 as punitive damages.
Appellee Chevrolet Company pleaded only a general denial.
Appellee Acceptance Corporation pleaded a general denial, and, in addition thereto, pleaded specially that it purchased said sales contract from said Chevrolet Company before maturity in good faith and for value, and without notice of any infirmity therein, and especially without notice of the matters alleged by appellant; that it was therefore a holder thereof in due course; that by the terms thereof the first installment became due December 5, 1929; that appellant failed to pay the same; that for such default it had declared the entire amount due and payable, as authorized by the terms thereof; that it did not repossess said automobile nor conspire with its codefendant to repossess the same. It attached a purported copy of said sales contract to its answer.
The case was tried to a jury, which, in response to a peremptory instruction by the court, returned a verdict in favor of both defendants. The court, on the 19th of July, 1930, rendered judgment thereon that appellant take nothing by his suit, and that appellees go thence without day and recover their costs. Said judgment is here presented for review.
According to appellant's testimony, which was not disputed, the copy of such contract in the hands of the Acceptance Corporation was signed by him under the express promise and agreement that the blanks therein should be filled as in the copy delivered to him. The Chevrolet Company afterwards filled said blanks in the copy delivered by it to the Acceptance Corporation. If its representative did so agree, and violated such agreement in filling the blanks in the copy so delivered, such action was fraudulent, and such copy unenforceable and void. Of course, if the contract actually agreed upon by appellant and the Chevrolet Company was that the payment of installments on the unpaid purchase money should begin December 5, 1930, as recited in the copy of the contract which he testified was delivered to him, and which was offered in evidence and excluded as aforesaid, he was not in default at the time he was induced to surrender said automobile to appellees.
Appellant, for the purpose of showing demand for the surrender of his automobile, offered in evidence a letter written by his attorney to the Acceptance Corporation. The letter so offered contained a clear and succinct statement of the facts as appellant contended them to exist, and stated that, if some adjustment was not made, he would file suit for possession of his car. Appellees objected to the introduction of such letter on the ground that the statements therein were hearsay. The court sustained the objection. Appellant testified that demand on him for a payment on his indebtedness for said car was made in December, 1929, and again in January, 1930; that, after the second demand, representatives of the Chevrolet Company said that they did not want to take his car away from him, but, if he would leave it with them, they would store it until they could make it all right with the Acceptance Corporation; that he did leave it with them, and they stored it at their place of business in Wortham. Mr. Hearne of the Chevrolet Company testified that they stored said car for the Acceptance Corporation. The testimony showed that said car was thereafter, without notice to appellant and without authority from him, removed from said storage by the employees of the Chevrolet Company and carried to Teague. Appellees did not tender it nor reveal what had been done with it after such removal. We think such testimony tended to show such repudiation of the purported bailment and such acts of control and dominion over appellant's car as to raise an issue of conversion, regardless of a formal demand for its return. Wagner v. Marple,
*826The judgment of the trial court is reversed, and the cause remanded.