PARLIN & ORENDORFF CO. et al. v. GLOVER et al. (No. 6026.)

(Court of Civil Appeals of Texas. San Antonio. May 8, 1918. Rehearing Denied.

June 12, 1918.)

-TITLE.

1. SALES 219(2)-FALSE REPRESENTATIONS If the purchaser of wagons in a financial statement to the seller misrepresented either his interest in the business or the liabilities and assets and deceived the seller, title to the wagons did not pass to the purchaser. 2. SALES

roneous.

Error from District Court, Hays County; Frank S. Roberts, Judge.

Action by the Parlin & Orendorff Company and others against F. D. Glover and another. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.

E. M. Cape, of San Marcos, and U. F. Short, of Dallas, for plaintiffs in error. R. E. McKie, of San Marcos, for defendants in error.

SWEARINGEN, J. Plaintiffs in error, Parlin & Orendorff Company, a corporation, filed this suit against Frank D. Glover and Cullen Crews, defendants in error, to recover a carload of Bain wagons, alleged to have been obtained by McMeans from plaintiffs in error through fraud. Plaintiffs in error had the property sequestered while possession was claimed by defendants in error, Glover and Crews. A jury was impaneled to try the cause, and special issues requested by plaintiffs in error to be submitted to the jury. Upon the conclusion of the testimony, the court instructed a verdict for the defendants in error, and rendered judgment thereupon that defendants in error recover against plaintiffs in error and the sureties on the replevin bond, E. O. Tennison and Guy Simpson, the sum of $1,140. Parlin & Orendorff Company and the two sureties prosecute this appeal.

The issues indicated by the following facts were sufficiently made by the pleadings: From the evidence it appears that F. D. Glover and Cullen Crews launched A. H. McMeans in the mercantile business in San Marcos in February, 1897, by furnishing him with $7,500 in cash. Before the store was opened for business, McMeans ordered the wagons, here involved. Upon receipt of the order, plaintiffs in error required a written statement by McMeans of his financial condition. In compliance with the demand, McMeans, in a writing signed by him, stated that he was the sole owner of the business, and that his assets exceeded his liabilities as fol

partners in the business to be conducted in uted the cash capital of $7,500, and McMeans the name of H. A. McMeans. They contribcontributed his services. The profits were to be divided equally between the three.

[1] If the jury determined from this testimony that there was a partnership of the three doing business under the name of H. A.

McMeans, then the financial statement, made by McMeans to procure the wagons, was not false as to the liabilities and assets, but was false because it failed to truly state the partnership. If the statement did truly state the ownership of the business, then it falsely stated the liabilities. In either event, the fact is, the statement was false, and plaintiffs in error were deceived thereby, and title to the wagons, because of this false statement, never passed into McMeans.

[2] Then again there is conflict in the testimony relative to the fact asserted by defendants in error that they were innocent purchasers, for value, of the wagons from McMeans; for there is testimony that defendants in error were partners of McMeans, and testimony that they were not. If they were partners, they were not innocent purchasers from McMeans. Further, upon the issue of innocent purchasers, there is this other material conflict in the evidence: There is evidence that

the bill of sale was executed to defendants in

error by McMeans for the sole consideration of using all the assets to pay all the indebtedness incurred in the said mercantile business. Parlin & Orendorff Company's claim was a part of the indebtedness, and was never paid.

[3] The fourth and fifth assignments complain of the court's peremptory instruction to find for defendants in error and refusal to submit the issues made by the foregoing facts, based upon appropriate pleadings, to the jury for determination. In our opinion the evidence is conflicting upon material issues pleaded, and it was the duty of the trial court to submit such issues to the consideration of the jury. The court's direction of a verdict

which good, marketable marble was being removed in paying quantities. And in support of this assignment the proposition is presented that, where the verdict of the jury is clearly against the preponderance of the evidence, it will be reversed on appeal, though the trial court has refused to set it aside.

There are two answers to this assignment. In the first place, the jury has made an adverse finding upon this issue, and it was not error for the court to render judgment in accordance with such finding. It could not properly render any other judgment. If the finding was unsupported by the evidence, it was appeflant's duty to attack the verdict, and move to set it aside. They cannot question the correctness of the court's action in rendering a judgment in accordance with the verdict. Scott v. Bank, 66 S. W. 485; Crawford v. Wellington, etc., 174 S. W. 1004; Hayes v. Fur. Co., 180 S. W. 149; Ins. Co. v.

Jesse French P. & O. Co., 187 S. W. 691; Ins.

Co. v. Burwick, 193 S. W. 165.

[3] Furthermore, the mere fact that the finding may seem to be against a preponderance of the evidence does not authorize this

court to set it aside. For the rule upon this subject, see Insurance Co. v. Fulghum, 177 S. W. 1008; Railway Co. v. Somers, 78 Tex. 439, 14 S. W. 779; Railway Co. v. Schmidt, 61 Tex. 282; Zapp v. Michaelis, 58 Tex. 275; Railway Co. v. Patterson, 173 S. W. 273. Under the evidence in this case, we do not think this court would be warranted in setting aside the finding of the jury, and reversing on that ground.

We have considered the first four assignments presented in the brief for the purpose of ascertaining whether they present fundamental error which would require reversal, though not properly assigned, and are of the opinion that they do not. Affirmed.

party to return a cow that had been given in part payment for the right, the new contract was supported by valid consideration. 4. COSTS 231(3)-AWARD-ON APPEAL OR CERTIORARI.

Where judgment was rendered for plaintiff in the justice court and upon certiorari plaintiff again obtained the same judgment, but defendant obtained a judgment on a counterclaim not given him below, there was no error in assessing costs of county court to plaintiff under Rev. St. 1911, art. 2016, providing for assessment of costs on appeal or certiorari.

Appeal from Bexar County Court; John H. Clark, Judge.

Suit by D. W. Williams against John Nations and another in, the justice court. Dismissed as to the other defendant. Judgment for plaintiff. The cause was removed to the county court upon certiorari, where judgment was rendered for plaintiff and for defendant on a counterclaim. Defendant appeals. Affirmed.

lant. Harris & Newton and McCollum BurBen H. Kelly, of San Antonio, for appelnett, all of San Antonio, for appellee.

FLY, C. J. This suit originated in the justice's court, where appellee sought to recover of appellant and John Freeman a Jersey cow, or $75, her value. In that court appellee ob- . tained judgment for the cow as against appellant, Freeman having been dismissed from the suit, and appellant in a cross-action for the value of certain films and "lobby display" recovered $18 against appellee, which judgment was set aside and afterwards judgment by default taken against appellant. By writ of certiorari the cause was removed from the justice's to the county court. In the latter court a jury was waived and judgment was rendered in favor of appellee for the cow, her value being fixed at $75 and in favor of appellant for $18, the value of a certain display.

It appears from the statement of facts that on October 6, 1914, a written contract was entered into between appellant and appellee whereby in consideration of $1,110.65, of which sum $125 was cash and a note for $985.65, appellant sold to appellee the right to exhibit, show, or illuminate a certain motion picture known as the "Dimmit County Smugglers," in the state of Louisiana. Appellee exhibited the picture in that state, but the people thereof did not respond with their cash with sufficient constancy and enthusiasm, and appellee, on November 30, 1914, signed an agreement, appended to the original contract, that the contract was forfeited, and he agreed to return "the films and lobby display" within 10 days to appellant or Freeman "at the Grand Rooms in San Antonio, Tex." The films were returned to Freeman in February, 1915, and he accepted them, and also accepted $12 for the "lobby display," which was not returned. Appellant bound

himself to return the Jersey cow which had been delivered to him as $75 on the cash payment of $125. It was in evidence that the films were ready for delivery early in January and were held awaiting the return of the The cow was to be delivered by appellant in San Antonio. It was about 30 days after the contract was signed that appellant was informed that the films were ready for him in San Antonio.

[1] There was no evidence tending to show that appellant desired to have the films at once, and there is nothing to show that time was of the essence of the contract. There was no provision in the contract that it should be void if the films were not returned in 10 days. If it is desired to make time of the essence of the contract, the intention must be clearly manifested. Kirchoff v. Voss, 67 Tex. 320, 3 S. W. 548; Telephone Co. v. Huntington, 104 Tex. 350, 136 S. W. 1053, 138 S. W. 381.

[2] Not only was there no manifestation of the desire to make time of the essence of the contract, but the films were delivered to Freeman, who was authorized by the contract to receive them, and he did receive them and accepted $12 in payment of the value of the "lobby display" that had been lost. Appellant was informed of the act of Freeman and did not repudiate it, and did not return the money to appellee. There was a waiver of the 10 days' time, even if it had been of the essence of the contract, and he is estopped to set up the 10-day clause in the contract.

[3] The return of the cow for the return of the films was a sufficient consideration for the new contract. Appellee saw that he could not realize any profit from the films, and upon representing this fact to appellant it was agreed to abrogate the original contract, and their mutual agreement was supported by a valid consideration. Foley v. Storrie, 4 Tex. Civ. App. 377, 23 S. W. 442; Craig v. Barreda, 200 S. W. 868.

[4] The case of Grimm v. Williams, 200 S. W. 1119, decided by this court, does not militate against the ruling in this case as to the time of performance of the contract. In the cited case there was an agreement to pay a certain sum not later than a certain date, and when not paid on that date the person to whom it was to be paid declared the contract rescinded. In this case the condition was waived and the execution of the contract allowed to proceed.

The cross-assignment complains of the action of the court in assessing the costs of the county court against appellee because the appeal was from a judgment by default. The fact remains, however, that appellant obtained a judgment against appellee in the county court which was not given him in the justice's court, and under the terms of article 2046, Revised Statutes, there was no error in assessing the costs of the county court against appellee. The cross-assignment is overruled.

None of the assignments of error is well taken, and the judgment will be affirmed.