Opinion
No. 9679.
January 1, 1927.
Appeal from District Court, Wood County; J. R. Warren, Judge.
Action by Mrs. Alma Moore against the Ford Motor Company. Judgment for defendant, and plaintiff appeals. Affirmed.
W. D. Suiter, of Winnsboro, for appellant.
Leon C. Huvelle, of Dallas, Floyd Harry, of Farmersville, and Cecil L. Simpson, of Dallas, for appellee.
The appellant, Mrs. Alma Moore, is the surviving wife of T. L. Moore, who, at the time of his death, was a dealer at Winnsboro in automobiles, trucks, tractors, chassis, accessories, etc., manufactured by Ford Motor Company of Highland Park, Mich.
It was provided in this sales agreement that either party could, with or without cause, cancel the agreement at any time by registered mail or personal notice to the other party.
Section 18 of the sales agreement reads as follows:
"In case of the cancellation or termination of this agreement, the manufacturer may, at its option, repurchase from the dealer at the price which he paid therefor, plus freight, all such of the aforesaid new and unused Ford automobiles, trucks, chassis, Fordson tractors, parts, and accessories as he may have on hand unsold at the date of such cancellation or termination. Manufacturer shall be entitled to the possession of all such Ford automobiles, trucks, chassis, Fordson tractors, parts, and accessories remaining on hand and wherever found, without any legal liability whatever, upon tendering to dealer the said purchase price thereof plus freight."
A short time after the death of Mr. Moore, appellee, through one of its agents, canceled the agreement by personal notice and later by registered mail from the home office.
This suit was based on two contentions; that is, appellant contends that, when the agreement was canceled, appellee exercised its reserved option to repurchase the unsold automobiles, trucks, tractors, chassis, accessories, etc., on hand, but refused to pay appellant for the merchandise according to the terms of the agreement; and that she was compelled to sell and did sell the merchandise for $1,986.45 less than the price appellee was obligated to pay as provided in the agreement. In a second count appellant contended that appellee wrongfully and unlawfully took possession of her business and the unsold merchandise, and converted the same to its own use and benefit, to her damage in the sum of $1,986.45, and, if she is mistaken as to her rights under the agreement, she is nevertheless entitled to recover as for conversion. The case was tried to a jury and submitted on special issues.
In question No. 2, the ultimate issue, the determination of which settled the controversy, was submitted as follows:
"Did the defendant, Ford Motor Company, acting by its agent or agents, exercise its option under the Ford Sales Agreement contract with T. L. Moore to repurchase from said dealer, T. L. Moore, or the representatives of the T. L. Moore estate, the Ford automobiles, trucks, etc.?" To this question the jury answered, "No."
The court refused the request of appellant to submit any question relating to the issue of conversion.
On the verdict of the jury, and in response to a motion to that effect, judgment was rendered for appellee, from which this appeal is prosecuted.
Appellant seeks a reversal on the ground that the evidence was insufficient to support the judgment. The evidence was sharply conflicting on the vital issue; that is, as to whether or not appellee exercised its option to repurchase the merchandise on hand at the time the agreement was canceled. The jury could have determined that issue either way, but, having decided the question against the contention of appellant, and it was peculiarly within their province to so find, we are not at liberty to disturb their verdict.
It is also insisted that the court erred in refusing the request of appellant for a finding on the issue of conversion. We do not believe the evidence raised the issue of conversion; hence the court did not err in refusing the requested instruction. Gulf, Colo. S. F. Ry. Co. v. Buckholts State Bank (Tex.Com.App.) 270 S.W. 1008.
Appellant criticizes paragraph 2 of the 4 court's charge quoted above, on the ground that it presented a legal conclusion for the jury to pass upon; that, in lieu, the jury should have been required to find facts from which the court could have drawn the legal conclusion as to whether or not appellee had exercised the option to repurchase the merchandise.
The court having, in our opinion, properly submitted the ultimate issue of fact that was determinative of the controversy, was not required to submit mere evidentiary issues.
Finding no reversible error, the Judgment of the court below is affirmed.
Affirmed.