152 S.W. 1160 | Tex. App. | 1913
The suit resulting in the judgment from which this appeal is prosecuted was commenced by appellee against Fleming Roberson, alleged to be a copartnership composed of Lee Fleming and A. C. Roberson, by a petition filed September 15, 1908. It was to recover $950, as the market value of certain furniture owned by appellee, which she alleged said Fleming Roberson had unlawfully converted to their own use August 1, 1908, and $50 per month after said August 1, as the rental value of the furniture. In an amended petition filed October 30, 1910, appellee alleged that appellant was a member of the firm of Fleming Roberson, and made him a party defendant in the suit. The case was tried on an amended petition filed November 8, 1911, in which appellee alleged that the conversion she complained of occurred January 1, 1909. In a plea duly sworn to appellant denied that he was ever a member of the firm of Fleming Roberson; and in his answer, among other things, pleaded that appellee's cause of action against him accrued more than two years before she made him a party to her suit, and therefore was barred by the statute of limitations, The court instructed the jury to find in favor of the firm of Fleming Roberson, and no complaint is made of the judgment rendered in favor of said firm in accordance with such a verdict. On issues, as submitted by the court, between appellant and appellee, the jury found in favor of the latter; and in accordance with their finding judgment for the sum of $400 was rendered in appellee's favor against appellant.
It appeared from the testimony that appellant was never a member of the firm of Fleming Roberson. It further appeared that he had leased a rooming house in Ft. Worth until January 1, 1909, and owned a lot of furniture in the house. He sublet the house to one Farley, and sold him the furniture. Farley was to pay $700 for the furniture in installments of $25 each. The transaction was evidenced by a written instrument containing a stipulation that the furniture was to remain the property of appellant until the purchase price thereof was paid. January 14, 1908, when there was a balance unpaid of $588.95 of the sum Farley had agreed to pay for the furniture, he sold same to appellee, who, as a part of the consideration therefor, undertook to pay appellant said balance of $588.95 due from Farley. Thereupon, it seems, the contract between appellant and Farley was canceled, and in lieu of it one between appellant and appellee was entered into, whereby the former sold the furniture to the latter for $588.95, payable in monthly installments of $25 each. This transaction also was evidenced by a written instrument, in which it was stipulated that the furniture was to remain the property of appellant until the $588.95 was paid; that until paid for it should not be removed from the rooming house; and that appellant might resume possession thereof in the event appellee failed to pay any one of the installments when it became due. At the time she purchased the furniture, appellee rented the rooming house from appellant, and then subrented it, furnished, to other parties until July, 1908, when she notified appellant that she did not wish to rent the house any longer and desired to remove the furniture to other houses controlled by her. Appellant, however, refused to permit her to remove the furniture, and at once rented the house and the furniture to other parties. As none of the installments of the purchase money was then due, appellant's act in assuming control of the furniture and renting it to other parties was not authorized by the contract whereby he sold the furniture to appellee, and therefore was unlawful and a conversion of the furniture, unless authorized by appellee in some other way. If the act amounted to a conversion, appellee's cause of action accrued then; and more than two years having elapsed thereafter before she commenced her suit against appellant her right to maintain same against him had become barred. The question on the issue of limitation therefore was, *1161 Did it appear that appellee had consented to appellant's act in renting the furniture to other parties in July, 1908? In her petition she alleged that appellant took possession of the furniture in July, 1908, under an agreement with her to pay her rent for same until January, 1909. Had she offered testimony in support of this allegation, the judgment might be sustained. But there was no such testimony. On the contrary, appellee, as a witness, emphatically denied the existence of such an agreement, as is shown by portions of her testimony, as follows: "There was no agreement made between myself and Mr. R. J. Roberson in July, 1908, that he was to take my furniture and keep it there in this rooming house and rent it, and if he could make anything over and above expenses he was to pay it to me. I never made any agreement with him to do that. I did not testify yesterday that I did. It was a proposition that he made to me, but there was no agreement on it. I did not testify to Judge Harris on direct examination, and also to you on cross-examination, that that was the arrangement between us. There wasn't any arrangement. We never came to terms in any way. He would not come to any of my propositions, and I would not come to his. I did not swear yesterday before this very jury, sitting here in the box, that I agreed with him to leave that furniture there, and he was to keep it and rent it and if he could make anything out of it over and above expenses he was to pay it to me; that was a proposition that he made, but I never did accept it. I did not swear on direct examination to Judge Harris, and on cross-examination to you, that that was the arrangement under which I left the furniture there. I turned the building back to him, but I never did turn my furniture over to him. There was never any agreement about the furniture. * * * It is not a fact that I rented him the furniture in there at the time I moved out. He made a proposition to me to take it back, but I did not accept it. I did not agree to it in any manner, shape, way, or form. * * * I am not suing him on a contract, claiming that I did rent it to him. * * * I did not turn the property over for him to keep possession of until the 1st of January, 1909. He took it without my consent, and said he would get as much out of it there as anywhere else. I did not agree to that. He had it against my wishes and without my consent and over my protest from the 15th of July, 1908. I was not willing for him to keep the furniture at all. I wanted him to turn it back to me. I never consented for him to keep this furniture one single minute and pay me rent for it. That was the reason I brought this suit. I don't remember the date of the suit. I brought suit because he would not turn over to me my furniture so I could rent it to other people." From this testimony it is obvious that the conversion of the furniture by appellant occurred in July, 1908, and that appellee's cause of action therefor was barred in October, 1910, when she commenced her suit against appellant. The judgment should have been for appellant. It will be reversed, and judgment will be here rendered that appellee take nothing by her suit.
