Dowlen v. C. W. George Manufacturing Co.

125 S.W. 931, 59 Tex. Civ. App. 124, 1910 Tex. App. LEXIS 324

• Court: Court of Appeals of Texas
• Decided: February 7, 1910
• Status: Published

Opinion

REESE, Associate Justice.

This is an appeal from the County Court from a judgment against appellant and in favor of appellee.

The suit is based upon certain instruments. First, an assignment by one Jordan, who was indebted to appellee, of the rents to accrue upon certain property owned by Jordan in Beaumont, the rents to be collected by appellant and by him paid over to appellee’s agent; second, an acceptance in writing by appellant of the trust and an agreement to comply with the terms of the assignment; third, a power of attorney from Jordan to appellant authorizing him to collect the rents. Two questions are presented by the appeal.

Appellant is in error in his contention that the statute of limitation of two years applies to this action by appellee against him to recover rents collected by him under the assignment and agreement and not paid over to appellee. The action is based upon appellant’s contract in writing as above set out, and is not an action for money had and received only, as contended by him.

The written power of attorney only authorized appellant to collect the rents. These rents had been assigned to, and thereby became the property of, appellee. Thereafter appellant had no right to apply them to the payment for repairs on the building, or to any other purpose, without the consent of appellee or its agent, and it was no defense to appellee’s claim that he had so applied them. The issue as to whether Crook, appellee’s agent, expressly or impliedly consented to such application was conflicting, and the finding upon this issue in favor of appellee will not be disturbed.

We have examined the various assignments of error. They present no ground for reversal and the judgment is affirmed.

Affirmed.