Opinion
No. 2912.
April 15, 1924. Rehearing Denied May 15, 1924.
Appeal from Wood County Court; Ben F. Cathey, Judge.
E. J. King and his father, G. T. King, on February 24, 1920, executed and delivered a promissory note for $141.85, payable to W. R. Wilkinson or order on the 15th of September following, and to secure the payment of the note a chattel mortgage was given on a horse and on a cotton and corn crop to be grown in 1920 on 30 acres of land, a part of the farm owned by Wes. Turner. Wes. Turner rented a farm to G. T. King, and he and E. J. King and H. C. King, his sons, cultivated the same, each different parts of it. E. J. King and H. C. King each delivered three bales of cotton grown on the land to G. T. King for purpose of sale, to spay to G. T. King the sum owing for supplies furnished by him to enable them to make the crop and to pay rent due Wes. Turner. G. T. King turned the six bales of cotton, together with five bales of cotton grown by him, over to Wes. Turner, the landlord, for security for the rent owing him. While Wes. Turner was holding the eleven bales of cotton for the purpose stated, he sold them to Scott Gibson for $1,148.09. The $1,148.09 was applied as follows: One-fourth, or $287.02, on rent, and $559.05 on account for supplies owing by G. T. King, and the remainder, evidenced by a check, was paid over to J. R. Roberts. None of it was paid to Wilkinson on his note, nor, it appears, to E. J. King.
The suit was commenced in the justice court by W. R. Wilkinson, the payee, to recover of the makers of the note the amount owing, and to foreclose the chattel mortgage, and against the other defendants as for a conversion of the cotton. The defendant Scott Gibson impleaded the Monnig Dry Goods Company, and asked for judgment against such company for any sum that the plaintiff recovered of him. The plaintiff amended his pleadings and sought judgment against the Monnig Dry Goods Company, upon the ground that it acted with Turner, Roberts, and Gibson in the alleged conversion of the cotton. The trial in the justice court resulted in a judgment in Wilkinson's favor against the makers of the note for the principal and interest, and with foreclosure of the chattel mortgage lien on the personal property described, and against Scott Gibson and the Monnig Dry Goods Company as for conversion. Scott Gibson was awarded judgment against the Monnig Dry Goods Company for the sum he was to pay. So far as the record shows the Monnig Dry Goods Company alone prosecuted an appeal to the county court. A trial de novo in the county court resulted in a judgment substantially as rendered in the justice court. Both Scott Gibson and the Monnig Dry Goods Company prosecuted an appeal to this court, but Scott Gibson did not file assignments of error, and has not prosecuted the appeal by brief or other appearance in this court.
The evidence establishes that Scott Gibson purchased the cotton from Mr. Kahn, acting at the instance and in behalf of J. B. Roberts as his agent at the time for the purpose. The evidence does not show nor authorize the finding of fact that Kahn, in effecting a sale of the cotton, acted as the agent of the Monnig Dry Goods Company, binding that company by his act.
Suiter Wilkinson, of Winnsboro, for appellant.
M. D. Carlock and R. B. Howell, both of Winnsboro, and Connor Ramey, of Sulphur Springs, for appellees.
This is a companion case to that of Monnig Dry Good Co. v. H. C. King et al. (Tex.Civ.App.) 261 S.W. 515, and both the facts and question for review on appeal are the same. The decision in that case is applicable to and controls the decision of this appeal.
The judgment against the Monnig Dry Goods Company is reversed, and judgment is here entered that W. R. Wilkinson and Scott Gibson take nothing by their suit against that company, and that such company recover against them all costs in this behalf expended in the trial courts and on this appeal. The judgment of the county court will not be otherwise disturbed. The costs of this appeal will be taxed against W. R. Wilkinson.