Opinion
No. 4152.
March 23, 1932. Rehearing Denied March 31, 1932.
Appeal from District Court, Red River County; R. J. Williams, Judge.
Action by J. T. McRoberts against G. C. Gibbons. From a judgment for plaintiff, defendant appeals.
Affirmed.
The suit was by appellee against appellant. In his petition appellee alleged that appellant, who was the president of the Gibbons Manufacturing Company, offered him employment by that company; that contemplating acceptance of such employment, and desiring, if he did accept same, to own stock in the company, he requested appellant to ascertain if such stock could be purchased, and, if it could be, at what price; that later appellant reported to him that forty shares of the stock could be purchased of one John J. Wade for $5,000, and assured him (appellee) that the stock was worth that much and could not be purchased for less; that appellee thereupon, at appellant's suggestion, "constituted (quoting) the defendant as his agent and instructed to purchase said stock for him"; that later, to wit, on April 10, 1926, "the said defendant (quoting further) purchased said forty shares of stock from said John J. Wade in his own name for the sum of $4,000.00, and on said date resold the same to plaintiff for the sum of $5,000.00, all without the plaintiff's knowledge or consent, and contrary to and in violation of the trust reposed in him — that the difference in said transactions, to-wit $1,000.00, was and still is retained by the said G. C. Gibbons to his own use and benefit, and that the same was retained with the intention of defrauding this plaintiff in that sum; * * *" that said G. C. Gibbons purchased the stock in his own name "with the preconceived idea and deliberate intention of using his position of trust for the purpose of defrauding this plaintiff in the premises as he did." At the trial appellant asserted a right he claimed to be sued in Dallas county, where he resided, instead of in Red River county. The asserted right was contested by appellee on the ground that his suit was for fraud committed in Red River county within the meaning of subdivision 7 of article 1995, R.S. 1925, and therefore was maintainable in said Red River county. By consent of the parties the issue made by the plea of privilege and contest thereof was tried with the issues made by the other pleadings in the case. It was undisputed in the evidence that the negotiations resulting in the purchase of the stock were between appellant and John J. Wade. It was also undisputed that the $4,000 paid to Wade for the stock was a part of $5,000 furnished by appellee to pay for same, and that the remaining $1,000 of the $5,000 was converted by appellant to his own use. Appellant's contention was that he was never appellee's agent, and that he acted for himself and not for appellee when he purchased the stock. Special issues were submitted to the jury by questions as follows, answered as indicated:
"1. Was G. O. Gibbons acting as the agent of J. T. McRoberts in the negotiation and purchase of the stock in the Gibbons Manufacturing Company owned by John J. Wade? In this connection you are instructed that an agent is a person appointed to act for another in the transaction of some lawful business, and who accepts the appointment. Answer: Yes.
"2. Did G. C. Gibbons conceal the fact from J. T. McRoberts that he, Gibbons, had received and retained the sum of $1,000.00 out of the $5,000.00 paid by McRoberts intended by him to cover the purchase price of the stock in Gibbons Manufacturing Company as owned by John J. Wade? Answer: Yes."
The appeal is from a judgment overruling appellant's "plea of privilege," and in appellee's favor against appellant for $1,309, being the $1,000 sued for and interest thereon.
Jones Jones, of Mineola, for appellant.
A. L. Robbins, of Clarksville, and R. T. Bailey, of Dallas, for appellee.
As noted in the statement above, the parties agreed the question made by appellant's "plea of privilege," and appellee's answer thereto, might be tried with the main suit. One of the two contentions presented by assignments in appellant's brief is that, said question having been so tried and the cause having been submitted to the jury on special issues, it was error in the trial court to overrule the plea of privilege in the absence, as was the case, of a finding by the jury that appellant had committed actionable fraud in Red River county. It conclusively appeared in the evidence that all the acts and omissions charged against appellant occurred in Red River county. That being true, we think it is plain the assignment should be overruled. It was not necessary the jury should have found a fact conclusively established as existent by the evidence. The question as to whether said acts and omissions charged against appellant constituted actionable fraud or not is not presented by the assignment nor the proposition under it, and appellant therefore is not entitled to have it determined here. It has been said that "all grounds (quoting) or reasons for attack are waived by failure to assign error, and any and all grounds of error germane to the assignment are waived if not urged in the proposition." Speer's Law of Special Issues in Texas, § 556, p. 705.
The other one of the two contentions is presented by an assignment of error as follows: "It was error for the trial court to submit to the jury a mixed question of law and fact as he did in special issue No. 1, wherein he submitted to the jury the question of whether or not appellant acted as the agent of appellee in the negotiations and purchase of the stock in the Gibbons Manufacturing Company owned by John J. Wade." We think the issue was not objectionable on the ground urged in the assignment and proposition under same. And appellant in his argument thereunder seems to have adopted that view of the matter, for the entire argument is devoted to an effort to show that the court's definition of the word "agent," given in connection with the issue was erroneous.
Neither of the two assignments and propositions under same in appellant's brief showing error entitling appellant to have the judgment disturbed, it is affirmed.