Opinion
No. 5743.
November 29, 1916. Rehearing Denied January 3, 1917.
Appeal from Nueces County Court; Walter F. Timon, Judge.
Suit by J. C. Coker against W. C. Mott and another, to recover on a note and foreclose a chattel mortgage given as security therefor. From a judgment against the maker for the amount of the note, but denying foreclosure, plaintiff appeals. Affirmed.
Suttle Todd, of Corpus Christi, for appellant. Pope Sutherland, of Corpus Christi, for appellees.
Appellant sued W. C. Mott on a promissory note for $194.40 and to foreclose a mortgage on a certain automobile, executed by Mott to appellant. W. E. Womack was made a party to the suit on the ground that he was in possession of the automobile and claiming the same. The cause was tried without a jury, and judgment rendered in favor of appellant as against Mott for the amount of the note, but in favor of W. E. Womack for the automobile.
Womack swore that he was the owner of the Star Theater, and that on March 27, 1913, Mott, as his agent, sold the same to Tyler Co., taking the automobile in part payment, that he (Womack) took possession of the automobile, and always retained possession as the owner of the same, and that Mott had no interest whatever in the automobile. Appellant showed that on March 27, 1913, Mott sold the Star Theater, and gave a written transfer in his own name, and received a bill of sale from Tyler Co. to him for the automobile; that, on April 2, 1913, Mott gave him the note for $194 and a mortgage on the automobile. The transfer of the Star Theater was not filed for record until April 10, 1916, and the bill of sale to the automobile was not acknowledged or recorded. Appellant swore that Mott told him that he traded the theater to Tyler Co. and that he had taken the automobile as part pay for the theater; that he saw the automobile a number of times in the possession of Mott, and that Mott had represented that he was the owner of the automobile, and had tried a number of times to sell the same to appellant. Two witnesses swore that the Star Theater had been listed with them for sale by lott.
The evidence showed that Mott left Corpus Christi after the sale of the theater, probably immediately after giving the note and mortgage. He could not have had possession of the automobile more than six days before he gave the note and mortgage, and yet appellant swore that he, during that time, saw Mott in possession of the automobile a number of times and that he "tried numbers of times to sell same to plaintiff." Womack flatly contradicted appellant as to Mott ever having possession of the automobile. No one else testified that Mott was ever in possession of the automobile. Womack did nothing to cause appellant to think Mott owned the automobile. Appellant did not state that he saw the bill of sale before the note and mortgage were executed.
When a cause is tried by the judge, his findings as to facts have the same force and effect as the findings of a jury. If the evidence is conflicting, a mere preponderance in favor of the losing party is not cause for a reversal. Mann v. Wallis, 75 Tex. 615, 12 S.W. 1123. The trial judge was in a much better position to pass upon the credibility of the witnesses and the weight to be given their testimony than this court could be. The bills of sale were given and received by Mott without the connivance of Womack, and the court may have deemed them a part of Mott's scheme to get money from appellant. Womack's positive testimony was not shaken by the words and acts of a man who got money from another and then fled from the community. Whenever the judgment of the court can be supported by any reasonable f theory as to the evidence, it must be affirmed, where there are no conclusions of fact and law. Tinsley v. Penniman, 8 Tex. Civ. App. 495, 29 S.W. 175.
Because the trial judge preferred to believe Womack as to his ownership and possession of the property, rather than the testimony of appellant and his witnesses, can form no ground for a reversal of the judgment, and none of the decisions cited by appellant sustains any such contention. We can readily conceive of a case in which a judge could properly and wisely reject the testimony of 20 witnesses and take that of one witness, even though the evidence of the 20 be supported by written testimony for which the one witness was not responsible. No effort was made by appellant to show by Tyler that he really bought the theater from Mott or really sold him the automobile. Womack swore the theater was his, and that Mott acted as his agent in selling it and taking the automobile as part payment, and the bills of sale did not destroy that evidence.
The judgment is affirmed.