Hines v. Jordan , 228 S.W. 633 ( 1921 )

It is not contended in any of the propositions in appellants' brief that the delivery of the cotton to the compress was a delivery to the consignee Devereux. Therefore this court is not called upon to determine whether the finding involved in the judgment that there was no such delivery was warranted by the testimony or not. Ry. Co. v. Wood,41 Tex. Civ. App. 226, 92 S.W. 259; Tel. Co. v. Vance, 151 S.W. 904; Ariola v. Newman, 51 Tex. Civ. App. 617, 113 S.W. 157; Boone v. Herald News Co., 27 Tex. Civ. App. 546, 66 S.W. 313; Ry. Co. v. Rowe, 224 S.W. 937.

In effect the contention here is that it appeared as a matter of law that the cotton was not delivered to the consignee, but that appellants continued in possession of it after it reached Jacksonville and were holding it as warehousemen at the time it was destroyed by fire.

We think the contention is not tenable in the face of the receipts in evidence showing the cotton to have been delivered to the compress company "for account of Frank Devereux," the consignee. If the transaction between appellants and the compress company was what the receipts show it to have been, and there is nothing in the record which required the trial court or requires this court to find it was not, the cotton was delivered to the compress company to hold, not for the Director General, but for Devereux. If it was, then it was wrongfully delivered, and appellants were liable to appellee as for a conversion of it, within the rule applied in Ry. Co. v. Seley, 31 Tex. Civ. App. 158,72 S.W. 89, as determined by the trial court, unless it should be said that Devereux had waived the right to assert such liability and that appellee was bound by his act. The only testimony tending to show such a waiver by Devereux was his own that, having been informed by a cotton buyer that he had ten bales of cotton at the compress, he requested that buyer and others to go to the compress, look at the cotton, and say what they were willing to give for it. The judgment involves a finding by the trial court that Devereux did not waive the conversion; and we do not think we should say, as we must to set aside the finding, that the testimony referred to conclusively established to the contrary. "Waiver" is an intentional abandonment of a known right. "There can be no waiver unless so intended by one party and so understood by the other, or one party has so acted as to mislead the other and is estopped thereby." 40 Cyc. 261; and see 27 R.C.L. 904 et seq. There is no testimony in the record showing that appellants knew that Devereux had requested the cotton buyer to look at the cotton. Hence, if he intended to waive the conversion, it did not appear that appellants knew it, and therefore it could not be said that appellants understood he intended to waive it; and certainly his request to the buyers to look at the cotton and bid on it did not operate as an estoppel against him in favor of appellants. As the trial court had a right to conclude Devereux did not waive conversion, it is not necessary to determine whether appellant would have been bound by his act if he had.

The assignment attacking the validity of the judgment so far as it is against appellant Walker D. Hines as Director General of Railroads is sustained. At the time of the trial of the cause, to wit, in May, 1920, the Texas New Orleans Railroad Company's line of railway had been returned to its owners, and the only proper party defendant was the appellant John Barton Payne, who had been designated by the President as the agent of the federal government to represent it in the defense of suits based on causes of action arising during the time the President operated railroads, in accordance with the requirement of the Act of Congress of February 28, 1920. And the United States also was not a proper party to the suit, except through said agent. 139 Cyc. 775.

The judgment will be reversed so far as it is against said Hines and the United States, and judgment will be here rendered that appellee take nothing as against them, and that they, respectfully, recover the costs incurred by them on this appeal. It will be affirmed so far as it is against said John Barton Payne as agent aforesaid.