Moore v. Conway

GEORGE, Commissioner. Appellee Tom Conway, trustee in bankruptcy of Bosque Mill & Elevator Company, a corporation, filed suit against appellant, C. M. Moore, to recover damages for alleged conversion of 5,000 bushels of wheat of the market value of $3,750. The trial was before the court and jury, and, on answers of the latter to special issues, judgment was rendered in favor of appellee for the market value of 1,800 bushels of wheat. Appellant says that the finding of the jury that he, at the time of taking charge of the Bosque Mill & Elevator Company’s mill, took over and used 1,800 bushels of wheat, is not only not supported by the evidence, but the finding is so clearly against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.' The burden was on appellee to establish the number of bushels of wheat appropriated by appellant. R. O. Bass was president and his wife, Travis Bass, was secretary-treasurer of Bosque Mill & Elevator Company. Appellant, during the years 1931, 1932, and 1933, stored approximately 35,000 bushels of oats in the bins of the company and permitted Bass to sell the oats for him from time to time. He was the holder of a deed of trust "lien on the company’s buildings and real property to secure the payment of an indebtedness in his favor in the approximate amount of $7,500. W. B. Oswald and other farmers of the Clifton community made a practice of storing their wheat in the company’s bins and elevators. Clement Grain Company shipped to Bosque Mill & Elevator Company, on February 5, 1934, 1,400 bushels of hard wheat to be used in blending with soft wheat grown in that section. Hard wheat was not grown in that section but had to be shipped in. R. O. Bass became seriously ill in the early spring of 1934 and his brother, Kendall Bass, took charge of the mill and operated it two or three days a week for a time and used available wheat on hand in the manufacture of flour and other wheat products. It appears to be conceded that the wheat taken by appellant was hard wheat. Appellant admits in his answer and testimony that he took possession of approximately 1,018 *956 bushels of hard wheat. Appellee relies on the hereinafter set out testimony of W. B. Oswald and Wallace Balor to establish the fact that appellant took 1,800 instead of 1,018 bushels of wheat. W. B. Oswald, witness for appellee, testified that appellant took charge of the mill on the 15th day of April, 1934; that he had a conversation with appellant on the 15th day of April 1934, in which he told appellant about selling Bass his wheat on credit; that appellant said to him: “Leave this to me. I have had lots of experience and will collect' this money. I have a deed of trust against the plant down there — the buildings and grounds. I am going down there in a few days”; that he, shortly after the conversation with appellant, went down and checked what was on hand at the mill and found 1,800 bushels of wheat, 1,400 in the elevators and 400 in the mill; that Kendall Bass was there and paid him $150 on the wheat he had sold R. O. Bass, but that appellant was not down there at the mill; that he did not know whether Kendall Bass or appellant was in charge of the mill on April 15, 1934. Wallace Balor, witness for appellant, on cross-examination, testified: “I don’t know whether all that 1800 bushels, except 100 bushels of it, was ground into flour after Mr. Bass (R. O.) left. I said so in my statement and I was telling the truth as near as I could.” Appellant testified that he went into possession of the mill on May 3, 1934, under a written lease, which lease was introduced in evidence, that .he would not take possession of the mill until an audit had been made; that an inventory of the wheat on hand was taken by A. G. Amundson, employee of Bosque Mill & Elevator Company, and L. E. Ten-nison ; that he took into his possession and ground into flour approximately 1,000 bushels of hard wheat under the belief that such wheat belonged to him. The testimony of the appellant is corroborated by the positive and unimpeached arid uncontradicted testimony of Amundson and Tennison that they made an inventory and found only 1,018 bushels of hard wheat on hand at the mill at the time appellant took possession of same and 165 bushels of soft wheat, 100 bushels of which belonged to Mrs. Bass and 65 bushels to Mr. Parks. The records and the testimony of Amundson indicate that the mill bought only one carload of hard wheat during the spring of 1934 and that was the 1,400 bushel carload shipped by Clement Grain Company. Amundson acte 1 for the company in taking the, inventory and appellant offered in evidence written authority of L. E. Tennison to act for the company, which was excluded by the trial court. The evidence is not in fact in conflict as to the number of bushels of wheat on hand at the time appellant took charge of the mill and appropriated same, except that belonging to Mrs. Bass and Mr. Parks, to his use. Appellee’s witnesses testify as to number of bushels on hand at a time other than that testified to by appellant’s witnesses. Appellee’s witnesses do not attempt to testify as to number of bushels on hand about May 3, 1934, or as to any other facts that would tend to show with reasonable certainty the number of bushels on hand at such time. The testimony of Mr. Oswald does not inform us as to whether the wheat he found down at the mill at the time Kendall Bass was present was on hand at the time appellant took possession of the mill, nor does his testimony inform us as to whether any part of the wheat he-found was ground during the time Kendall Bass was in possession of the mill prior to-the time appellant took charge. His testimony that appellant took charge on April 15, 1934, is the expression of a mere opinion and carries no probative force whatever, as is manifest by his other testimony to the effect that he did not know whether Kendall Bass or appellant was in charge of the mill on April 15, 1934, and that he had a conversation with appellant on April 15, 1934, in which appellant told him he was going down there in a few days, and that he went down there soon after the 15th of April and found Kendall Bass present, and that Kendall Bass, on such occasion, paid him $150 on debt due him by mill. He relates no facts on which such opinion could be reasonably based. The facts related by him tend to contradict the opinion given and destroy its probative force, if any it ever had. The testimony of the witness Wallace Balor is that he did not know whether all that 1,800 bushels, except 100 bushels, had been ground into flour after Mr. R. O. Bass became unable to visit the mill, but that he had made a statement to that effect at a time when he was trying to tell the truth as near as he could. This testimony gives no light whatever as to the number of bushels on hand at the mill at the time appellant took charge. If it be admitted that the 1,800 bushels were ground after R. O. Bass became seriously ill, this witness’ testimony would not show whether part or all of- it was 'on hand when appellant *957 took charge. This witness testified to the fact that Kendall Bass was in charge of the plant for a period of time after R. O. Bass became ill and that the mill was operated two or three days a week during that time in grinding wheat into flour and other by-products. The testimony is manifestly insufficient to support the jury’s finding that appellant took 1,800 bushels of wheat instead of 1,018 bushels, as admitted by him in his pleadings and testimony. Perkins v. Lightfoot (Tex.Civ.App.) 10 S.W.(2d) 1030. We have carefully examined the other assignments of error presented herein and we are not passing on same inasmuch as it is not likely that such matters will arise in the same manner on another trial of this cause. ■ The judgment of the trial court is reversed, and the cause is remanded for a new trial. Opinion adopted by the court.