Kroll v. Collins

340 S.W.2d 838, 1960 Tex. App. LEXIS 1787

• Court: Court of Appeals of Texas
• Decided: November 2, 1960
• Docket: 13578
• Status: Published

Opinions

POPE, Justice.

This is a venue action which concerns Sections 5, 9, and 29a of Article 1995, Vernon’s Annotated Texas Civil Statutes. Plaintiffs, Cornelius Kroll and Lionel Kroll, partners in raising cattle, sued Ed W. Collins in Frio County for breach of a written contract by which Collins agreed to buy and pay for several hundred cattle. Alternatively they sued Collins for conversion of the cattle. Collins resides in Harris County. Plaintiffs also sued Charles Boyd, d/b/a Lomita Livestock Auction Company, of Lampasas County, for conversion for selling the cattle for Collins. ' The also sued eight other defendants who purchased the cattle. All defendants filed pleas of privilege. The trial court overruled Collins’ plea and held venue against him in Frio County, but sustained all of the other pleas. Collins appealed and urges that venue for the suit against him should properly be in Harris County. The Krolls also appealed and urge that venue against Boyd and those who bought the cattle should be in Frio County.

Collins argues that Frio County is not the venue for the action against him under either Section 5 or 9. Collins and the Krolls entered into a letter agreement by which Krolls would sell him 462 cows and their calves, located on the Kroll Ranch in Frio County. Collins obtained delivery of the cattle in Frio County on several days during December, 1958, and obtained the last delivery on December 31, 1958. On that date 225 head of cattle were delivered to Collins at the Kroll Ranch in Frio County. The Krolls and Collins agreed that the cattle would be forthwith taken to scales in San Antonio and weighed. The actual physical delivery was made by loading the cattle on trucks hired and controlled by Collins. Collins took possession in Frio County and nobody denies this. In San Antonio the cattle were weighed and Collins gave Lionel Kroll a check for $32,351.-33 which the Krolls endorsed over and sent to Finance Credit Corporation in Fort Worth, which held a mortgage on the cattle. The Credit Corporation sent the check to Security State Bank at Navasota, Texas, the drawee bank, and on January 9, 1959, Collins stopped payment on the check.

Krolls failed to prove grounds for holding venue in Frio County under Section 5, Article 1995, supra. For that section to apply, the contract must provide for performance in Frio County, expressly naming such county or a definite place therein as the place for the performance of the obligation sued upon. Rogers v. Waters, Tex.Civ.App., 262 S.W.2d 521. The obligation here sued upon is that of payment. The contract stated that the cattle were located on the Kroll Ranch near Dilley, Texas, but it fails to fix Frio County as the place for payment.¹

Krolls did, however, prove venue in Frio County under Section 9, Article 1995. By alternative plea, the Krolls alleged that there was a conversion of the cattle in Frio County.² The controverting affidavit, upon which the plea was heard, alleged conversion in Frio County.³ The case was tried upon the conversion allegations without protest from the defendants other than a claimed failure of proof. These matters are set forth with some detail in view of the dissent which asserts that conversion in Frio County was outside the plaintiffs’ pleadings. Moreover, the conversion theory was tried by consent of the parties, without objection on trial, and without the point even being mentioned on appeal. Rule 67, Texas Rules of Civil Procedure; Burney v. Winfrey, Tex.Civ.App., 329 S.W.2d 136; Pacific Finance Loans v. Ingram, Tex.Civ.App., 290 S.W.2d 261; Western Irrigation Co. v. Reeves County Land Co., Tex.Civ.App., 233 S.W.2d 599. The absence of pleadings, therefore, is a point which, the parties did not think suitable to preserve or brief, and the only way this Court could take cognizance of the point is to treat the matter as fundamental error and originate the point ourselves, which we refuse to do.

Upon the alternative plea of conversion the Krolls may retain venue in Frio County under Section 9, Article 1995. Naylor Automotive Service v. First National Bank of Mexia, Tex.Civ.App., 284 S.W.2d 759. Conversion of personal property is a trespass under Sec. 9. Bowers v. Bryant-Link Co., Tex.Com.App., 15 S.W.2d 598; Amberson v. Wilkerson, Tex.Civ.App., 285 S.W.2d 420; Parchman v. Parchman, Tex.Civ.App., 239 S.W.2d 902. When the delivery of, and payment for, goods are to be concurrent acts, a buyer who receives and refuses to pay for the goods obtains a wrongful possession, which renders him liable in trover. 89 C.J.S. Trover and Conversion § 42; 65 C.J., Trover and Conversion, § 44. This rule has been applied to sales of livestock. John Clay & Co. Livestock Commission v. Clements, 5 Cir., 214 F.2d 803; Johnson v. Robinson, 5 Cir., 203 F.2d 135.

The only real point on this appeal is whether there is proof of the claimed conversion in Frio County. Since the trial court held venue in Frio County, we must look to the proof and inferences favorable to the presumed findings supporting that judgment. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Castro Co-operative Gin Co. v. Harrison, Tex.Civ.App., 272 S.W.2d 538, 540. The proof supports implied findings by the trial judge that when the Krolls delivered the cattle into defendant Collins’ trucks in Frio County they believed Collins’ statement that he would pay promptly upon weighing in San Antonio. Subsequent events support the idea that at the very time of delivery in Frio County Collins had the intent of stopping payment on the check. This appears from what happened just before the final delivery was made. Under the written contract, Collins had deposited with Krolls $10,000 in cash, which they were to hold until settlement on the final delivery. By reason of certain overpayments on earlier deliveries, Krolls actually had $13,000 on deposit. The proof shows that just before the last delivery of cattle Collins persuaded Krolls to credit the amount on deposit to the purchase price of cattle already delivered. Because their relationship had been satisfactory, Krolls did this, so that prior to the. final delivery Collins had settled with Krolls for all cattle already delivered and Krolls held no money to protect themselves on the final delivery. Not until this situation developed did Collins, with 225 head of cattle unpaid for and in his possession, stop payment. The trial judge, no doubt, concluded that this was a scheme by which Collins could obtain the cattle, promptly sell them, and stop payment. The end result is that Collins has the proceeds from the Kroll cattle, and Krolls have nothing. The trial court’s implied findings are supported by the further testimony that the Krolls understood the cattle were being shipped to pasturage, but instead Collins promptly delivered them to the auction ring where they were sold. Bomar v. Insurors Indem. & Ins. Co., 150 Tex. 484, 242 S.W. 2d 160; Castro Coop. Gin Co. v. Harrison, supra; Tanner v. Jackson, Tex.Civ.App., 246 S.W.2d 319. While we do not pitch our decision upon the matter, Collins received and sold the cattle without a bill of sale in violation of Article 6903, Vernon’s Tex.Civ.Stats., which was “prima facie illegal,” and under Art. 1482, Penal Code, it was also a penal offense punishable by fine. In our opinion, the proof and inferences support the idea that Collins at the time the cattle were delivered to him in Frio County, intended to stop payment on the check, and that plaintiffs would not have allowed the cattle to leave their premises except upon reliance that Collins would pay for the cattle and not stop payment on the check.

The court sustained .all the other pleas of privilege and the Krolls, as appellants, now argue that the other defendants should have been held in the suit in Frio County with Collins under Exception 29a, Art. 1995, supra. The plaintiffs were required to plead and prove that those other defendants are necessary parties. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 763. They did not, of course, contract in writing under Section 5, nor did they convert ány property in Frio County. Boyd in selling the cattle and the others in buying them, did so outside of Frio County. Though Collins, under our decision, may be held in Frio County because of his tort, the trial court correctly sustained the pleas of privilege of the other defendants whose conduct was independent of Collins’ con duct in Frio County, and there was no con cert or unity of design between them. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Sun Oil Co. v. Robicheaux, Tex.Com.App., 23 S.W.2d 713; 89 C.J.S. Trover and Conversion § 93.

The judgment is affirmed.

1 . “You agree to pay us 21⅛0 per pound for the cows, and 30e per pound for the calves that may be at their side, weighed upon their arrival at San Antonio at the Gurinsky cattle scales, freight and weighing at your sole cost and risk.

“You agree to disclose your sales price as the cattle arc sold by you, and pay us the full amount of your sale price before the cattle leave the ranch. Any amounts paid us in excess of the purchase price, based on weights at San Antonio as above provided for, will be credited to your advance payment hereinafter provided for. Any amounts paid us less than the purchase price will be paid us by you upon weighing at San Antonio.

“Upon your confirmation of this letter agreement you will make an advance payment of $10,000.00 to apply against the last cattle removed from the ranch.”

2 . “In the alternative and only in the alternative in the event Plaintiff is not entitled his judgment against the full amount of his claim against the said Charles Boyd and Ed W. Collins, then and in such event the Plaintiff prays that all the purchasers of the said cattle unpaid for, that is 125 cows and 100 calves delivered on December 31, 1958, that Plaintiff shall be entitled to recover said cattle from the Defendants or from the persons to whom they sold the said cattle.”

3 .“Plaintiffs further aver that under Article 1995, Section 9 that venue shall be had in Erio County, Texas, because of the acts of the Defendant, Ed W. Collins, in removing said cattle from the Kroll Ranch in Dilley, Erio County, Texas, and by conversion of the said cattle to the use and benefit of him, the said Ed W. Collins, by means of false and deceitful pretenses and devices and fraudulent representation with intent to appropriate the cattle to use of him the said Ed W. Collins and thereby impairing the right of the Plaintiffs to possession of said cattle, the Plaintiffs being the parties justly entitled to such cattle until such cattle are paid for.”