Carmichael v. Texas Co.

Jenkins, P. J. This trover suit was for the recovery by the alleged owner of certain equipment for a gasoline and oil filling-station and 110 gallons of gasoline from the defendant, who had become their purchaser at a sale under a distress-warrant proceeding previously brought by the defendant. The evidence was undisputed that the plaintiff as the actual owner of the equipment had merely loaned it to the person who was the defendant in the former distress warrant, and had afterwards loaned it to another person who had been in possession at the time of the former levy under the defendant’s distress warrant. Both bailees had been agents of the plaintiff to conduct a filling-station for the sale of its gasoline and oil. In the trover proceeding, it was undisputed that at the sale under the distress warrant the second bailee and former agent of the plaintiff acted as agent of the present defendant in bidding the property in; that the assistant district manager and a “local attorney” for the present plaintiff were also present at the sale, that the attorney bid on the property, and that before the sale this assistant manager “told [the present defendant] time and time again that it was the property of the Texas Company,” the present plaintiff. The evidence indicates that the plaintiff’s “local attorney” was then under the impression that the title of the Texas Company consisted of a recorded retention-of-title contract, under which the landlord’s lien of the present defendant would be contested, and so stated to the attorney of the defendant. It is plain that the defendant was thus put on notice that the plaintiff claimed the title to the property as against the defendant’s claim, and that such claim of title would be asserted. Under this testimony, the present defendant was not an innocent purchaser without notice, and was not entitled to claim an estoppel against the present plaintiff, even though it should be assumed that the plain [753] tiff could be bound by the presence of its “local attorney” at the sale, and his expression of opinion as to the nature of the plaintiff’s title and as to what method would or would not be adopted by the plaintiff to protect it. As to the equipment, the verdict in favor of the plaintiff was demanded. With reference to the 110 gallons of gasoline, under a written stipulation of the parties that, if the plaintiff should obtain a verdict and judgment for this item, judgment could be rendered for the market-price on the date of the judgment, the verdict and judgment in favor of the plaintiff included the specific sum of $22 to cover such value. As to this item, it appears that during his charge the judge stated: “Under the contentions, gentlemen of the jury, regardless of how you find on the other items of the suit, it would be necessary for you to find in favor of [the defendant] for the gasoline. Is that right?” Counsel for the defendant replied, “Yes, sir.” The record fails to show that any negative response was made by the plaintiff or its counsel. In their brief it is argued that counsel then made a denial, and that only part of the colloquy was reported by the stenographer. The record, with the statements quoted, being certified, the court must be governed thereby. The instruction and inquiry of the court, the reply of the defendant, and the silence of the plaintiff, as indicated, show in effect an admission in judicio by both parties that the evidence demanded a finding for the defendant as to the gasoline. This portion of the verdict and judgment was therefore illegal. The judgment denying a new trial to the defendant is affirmed on condition that this illegal item be written from the recovery on or before the time when the remittitur of this court is made the judgment of the trial court; otherwise the judgment is reversed. Judgment affirmed on condition. Stephens and Sutton, JJ., concur.