*1 phrase that tions of those what meant was discussed. We think inconspicuously placed and in manner which have determined' we type principal relatively unnecessary almost that it would small issues makes average escape purchaser’s pass certainly arguments. the additional Salyer plain from the attention. It is The order of the Federal Trade Com- opinion was unwill- Commission mission is previous accept use disclosure Affirmed. appeared prominently than which process which the disclosure subjected.
oil had been case, hearing in B. At the they whether witnesses were asked
five petitioner’s containers could tell from
bearing marking “Reprocessed Oil” previously used. if new the oil was or any prior had
None experience these witnesses acquaintance reclaim UNIVERSAL C.I.T. CREDIT CORPORA- readily Some, appears,
ed used oil. TION, Appellant, used understood that the contained cans repurified, while oth oil which had been Rubye STEWART, Appellee. C. character ers were uncertain as to the No. 17233. Although of the mony such testi contents. strong in was not and conclusive Appeals United States Court of label, petitioner’s dictment it in Fifth Circuit. prospective purchasers dicated that some 14, 1959. Jan. limited disclosure. deceived Denied Feb. This, cpupled with the own Commission’s experi observation labels and enough regulation, ence for a con tendency to
clusion that label had
deceive. E. F. Drew & Co. v. Federal Cir., 1956, Commission,
Trade 235 F.2d petitioner The that none stresses expert
of the witnesses was an or had purchased used'oil,
ever this basis argues sampling “opinion” think, however,
was unfair. We necessary. always such witnesses are not actually have
Neither customers who deceived, experts, pro nor need be
duced where themselves suf exhibits
ficiently capacity their demonstrate Corp.
deceive. Zenith Radio v. Federal Commission, Cir., 143 F.2d Trade Library American New World Commission, Federal Literature v. Trade Cir., F.2d Hillman
Periodicals, Inc. v. Federal Trade Com Cir.,
mission,
other varia-
Spencer Lloyd Carver, Biggers, Baker, Carver, Dallas, Tex., appellant. & for Jr., Dallas, Tex., Andress, William for appellee. Judge, HUTCHESON,
Before Chief WISDOM, and RIVES and Circuit Judges. Judge. RIVES, Circuit Universal C.I.T. Stewart sues damages Corporation Credit for for ex- and for conversion of her automobile damages emplary ground that on the the. disregard of conversion was in willful rights. her Either both of two con- or claimed, tak- versions is first in the automobile, in its the second defends, disposition. Universal C.I.T. claiming disposed of the that it took and purchase under of a automobile the terms Judgment money mortgage.1 chattel jury’s entered verdict plaintiff in as act- amount damages plus $1,250 ual as together $1,608.24, or a total of with 6% date which the car was taken year approximately one rendi- before the judgment February 20, tion Upon appeal, this Universal insists: undisputed (1) evidence shows 1. It together er if torney. if without enter mand terms tody election, all “If permitted found, shall relies holder under this Customer any premises mortgage pay anything insecure, notice Customer consider particularly take performance deliver the car may, chattel- said a reasonable possession compensation defaults law) become found in the full balance shall the indebtedness mortgage: agrees where the car placed on the due attorney’s or, or if the hold- of it and cus- it, legal process, with an at- any for the use at sum forthwith, and retain any following holder’s obliga- holder, or de- (15% fees, may or sion. or without credited on the amount der; for the breach of this unless change supplied.) receive (at “Waiver waiver the car while without [*] which the holder proceeds Customer in this any notice, forthwith writing C.I.T. [*] surplus. car any mortgage at shall may signed by * * as private all default [*] other may Customer’s liquidated pay any remaining mortgage expenses be sold with or car at payable shall be purchase) or default. [*] shall not be an public (Emphasis officer of and shall shall hereun- possos- binding [*] sale; with sale No be mort joined in the the automobile but did not convert that it son-in-law, gage at her lawfully accommodate peacefully Gooch, minor provided Lewis who was manner and in a a time mortgage pro default; (2) purchase. The mortgage time then *3 chattel monthly payments of of the vided for $109.38 value to the the evidence day support month. Gooch the on 25th of each to the sufficient is not automobile payments, that, the verdict; (3) became arrears with the jury’s in view his court he received the district thereafter terms Mrs. jury (a) charging Forces. that ac- induction into Armed erred Up payments then cars. waived Uni- and Gooch traded ceptance late Stewart office, telephone right call Universal’s on to demand future to versal’s pay warning (b) two time, Stewart was informed that that notice and Mrs. bring required required ac before de- to ments would be were Mrs. Stewart to Beginning declared; (4) date of the dis- current.2 count could fault allowing conversation, the follow she issued erred in court trict ing amounts and in the date of checks dated taking. shown: Amount
Date
6-13-56 ........ ........ $210.00
7-15-56 109.00 ........ ........ 105.00
8-22-56 ........ ........
9-12-56 9.46 ........ ........
9-20-56 109.00 ........ ........
10-21-56 109.00 ........ ........
11-21-56 ........
12-29-56 ........
1-19-57 ........ 109.00 ......... 978.46 $ (Returned 2-20-57 because received the mail on 2-23-57 after car had previous day) 109.00 $ ...........$1,087.46 Total ... you subsequently up “Q. Did testified:
2. Mrs. Stewart actually July (Sic, the check difference? A. Yes.” In “Q. Cunningham, 13, 1956), when Mr. June defendant’s was issued manager, check, your No. branch Exhibit issued testified: any- you Now, $210.00, “Q. call or contact let’s You know did see. when Rubye between Stewart took about trade this car over from one at O.I.T. you exchang- you you Gooch, Louis did where not? A. and Louis Yes. your “Q. You knew she ears? A. Yes. had contacted you talk A. I don’t office to find out did to? what it would take to Who “Q. put good standing, the note back in know. you you inquire payments? in that conversa- told her two Did A. That “Q. money re- it would is to much correct. tion as how you did, right shortly bring quire “Q. A. account current? And there- after, get Plaintiff’s Exhibit check Yes. money required $210.00, which was little How much “Q. short payments. payments, right, A. Two two is isn’t time? Yes, sir, That each? A. it? A. that is correct. $309.38 Of “Q. you accept right. “Q. And didn’t refuse to according $210.00, short, you? you because it was sent did Now “Q. you? Yes, No, didn’t A. A. sir.” Exhibit No. sir. foregoing guaranty This car. and take dispute over to the There is no from deal- suit followed. arose facts. The confusion ings and Gooch between Universal necessary is not decide whether It which was not informed. Mrs. Stewart wiring ignition while the around the one When Gooch was unable meet property parked private tomobile was granted payments, him an notifying at work changed due date extension and away reposses- peaceable a few feet monthly payments from 25th sion.3 As Universal and between Mrs. Stew- When the month. Stewart, telephone conversation telephoned assumed art Universal and (footnote 2, supra) probably her un- left *4 payments, primary responsibility for the impression payments der the that the payments in for Gooch was arrears the Universal, good kept in which she made standing. the contract due, on him and as between Mrs. Both Goochand Stewart May 12, From that June 1956. and signed original calling for the contract 2, telephone (see footnote conversation payments day the month. on of the evidently supra), under- Mrs. Stewart hardly necessary It would seem to cite payments to referred stood the two that authorities to the Mrs. Stewart effect that months for were would be due the all that by agreement between not bound the May conceded of and June. Universal only Universal and no Goochof which she had change monthly due in the that the changing 12th.4 notice that date to the no that made Gooch and date was change shows, payments As the tabulation Stewart, and was made with Mrs. days Mrs. mak- Stewart was four late in notice had denied Mrs. Stewart ing payment. her the December All of change. any others made 25th of the were before the month, accepted and each was without telephone call referred Other than the objection except the check transit passed to, between no communications when the car was seized. until her and Universal Stewart 22, was seized on tomobile manager Universal’s branch employee found the Universal’s by $1,271 paid testified that the balance private parking the off of lot car on dealer-assignor was all that the adjoining beauty shop where street the manager worth, was and the dealer’s was worked. Mrs. Mrs. Stewart Stewart gave opinion his car was worth that the employee only away, the few as feet $1,300 $1,250 and to testified that it was However, on no demand made he knew. $1,300. re-sold for Mrs. Stewart testified gave keys her car and her for the to the objection that value of her the Instead, the around he wired no notice. up picked the automobile at time it was ignition possession of the car and took According $2,000. to Universal’s it. manager, unpaid balance mort on the gage mana- time car was called Universal’s $1,423.54. Adding stolen, ger in- was report he to that balance the ear and repossessed. awarded had been her formed that it jury damages, payment appears actual told him that a she When jury estimated the mail, replied be value of the that it would car as he in the $1,781.78, considerably unpaid demanded entire than and refused amount to which Mrs. Mrs. Stew- within When Stewart testified. a week. qualification pay, of a witness on the Universal called is art did not largely purchased sue value had within the discre from whom it dealer judge, mortgage good and, trial Texas, his tion of the an note and Sales, 953; Am.Jur., Wheeler New Annota- Brunswick & C. § R. 3. See Co., 1885, 29, 1061, 115 U.S. S.Ct. 146 A.L.R. 341; Cooper 29 L.Ed. Chastain v. Shapleigh Cf., Reed, Hardware A. F. Co. v. & Tex. 257 S.W. Tex.Jur., Contracts, Wells, 2d 10-A Tex. 37 S.W. § 213. support the generally testify val to the which under Texas law would can owner persona charge car, tools, respect, I or other ue of his own in that the verdict lty.5 justice keep cannot in silent to the law dissenting, the reasons for contends charging jury court erred briefly district These stated are that acceptance waived of late Corbin, Motor Tex.Civ. Panola Co. v. payments on right demand future App., 688, 690, 253 S.W.2d mis-cited expressly mortgage time, stated since appellee authority her for as the sole any be not should default that, waiver claim if there was a conversion default, that the of a future car, waiver company li would the credit exemplary damages, charging jury also erred just eourt for able held habitually accept- that, had after it judg contrary. upholding While warning payments, late re- ment actual the court required before to Mrs. Stewart versed it as award late future could declare default payment. rule: thus stated the Texas objections to the , Both of these *5 damages exemplary Punitive or n charge premised fact are showing only recoverable after a the terms in novation or alteration valid af aggravated mal circumstances moving pay- of the written contract negligence. OT fraud lce’ 8T0SS forward from ment date shown, which, 12th, is false support leading as has been cites the and it premise, and Mrs. between Universal Supreme opinion in Court thoritative Further, fol- courts Stewart. the Texas 101, Howard, S. Bennett v. Tex. general parties rule that 709, controlling low the Texas W.2d in which the power power make a contract have analyzed, are caSes collected and regardless self-imposed modify ., , „ it . wholly Tiie evidence m case was this limitations6 proof devoid of of such facts. It showed Texas, from the runs In beyond question company had that the wrongful injury or conver date of nothing gained nothing, gain, and *7 si°u.5 except foreclosure freedom trials with and tribulations connected in the rec- find reversible error no We handling keeping up collections judgment and ord, is and paper. clearly pro contract Affirmed. vided : Judge (dissent- HUTCHESON, Chief “If ob- defaults on Customer ing). ligation under this or if shall consider the indebt- holder standpoint From the insecure, full edness or the involved, appeal really this is an shall beeome without notice case, picayune and if were not for it * * * forthwith holder due may to, ex- award of instructions demand emplary in direct contradiction legal process, performance or enter merely Texas, I note should law in any premises may where the car however, my When, as is dissent. * * found, possession it, take absolutely here, no ” there evidence Drilling Allred, Co. See Rhoads v. Tex. McClintic, 6. Cf., Fire v. Ins. Co. 5. Calvert Com.App.1934, 229, 123 Tex. 70 S.W.2d Tex.Civ.App., 1954, 568; 267 S.W.2d 583, 576, v. P. B. and Groce Yates Mach. Allen, Tex.Civ.App. Co. v. Finance Motor Co., Tex.Com.App.1926, 288 S.W. Pacific 252 S.W.2d Finance Gilkerson, Tex.Civ.App., Corporation v. S.W.2d Western Cotton Tex.Jur., Conversion, Trover and § Tex.Civ.App.1952, Mayes, p. 58.1, Co. cases there col- n. Oil lected. S.W.2d While under the evidence this case very
seems to me doubtful a case damages,
was made out for actual defendant did not move for a verdict ground, precedents and under the not, my opinion, entitled to exemplary the claim. As to the however, by charge, exceptions point I, was made and there- saved. fore, dissent from affirmance of the
judgment damages. HUTCHESON, denied: Judge, dissenting.
Chief *6 HENSLEE, Appellant,
L. Walter . v America,
UNITED STATES of e.
Appelle
No. Appeals
United States Court of
Fifth Circuit.
Jan. Denied Feb.