Worsham v. Vignal , 5 Tex. Civ. App. 471 ( 1893 )

Appellant's first assignment of error is not well taken. The evidence at least raised the issue of cotenancy, as distinguished from partnership, between Vignal and Johnson in the cattle, if it did not strongly preponderate in favor of the former relation. The principal difference between a partnership and cotenancy in the ownership of personal property is, that the former is created, regulated, and controlled by the agreement entered into by the parties, while the latter arises from the ownership of the property itself. Freem. on Coten. and Part., sec. 111. In this case the direct evidence only goes to the extent of showing a joint acquisition of the property by each of the parties contributing toward its purchase. This was sufficient to show a cotenancy; but whether it would, in connection with the other circumstances in evidence, show a partnership, was properly left to the decision of the jury. The definition of partnership and of cotenancy, as given by the court below, is not complained of.

The third paragraph of the court's charge was as follows: "If you find and believe from the evidence that the plaintiff, John Vignal, and Joe Johnson were joint tenants, as hereinbefore defined in the second paragraph of these instructions, in the ownership of the cattle described in plaintiff's petition, and that the defendant, within two years next before the filing of the petition herein, bought of Joe Johnson the said cattle, and that Joe Johnson was not authorized to sell the interest of plaintiff, and plaintiff did not consent to said sale, and did nod not ratify the same, you will find for plaintiff."

The effect of the charge is, that the vendee of one cotenant who, without authority, undertakes to sell the whole, by the very fact of purchase becomes liable to the other tenant for a conversion of his share. We do not understand the authorities to go to this extent. Such a purchaser would at least become a cotenant in the property, and entitled to retain possession, in some cases, even against those interested with him. In other words, he would have as much right to the possession of the joint property as they, and in order to make him liable for the conversion of their interests, it has generally been held necessary to show a state of facts equivalent to a loss or destruction of their shares through his acts. Trammell v. McDade,29 Tex. 362; Freem. on Coten. and Part., sec. 311; Cool. on Torts, 2 ed., 533. In this case appellant admits that he has shipped most of the cattle out of the country, but not all of them, and we would not in this state of the evidence be authorized to treat this charge as harmless error.

If appellant is liable for a conversion at all, he should be charged with interest from its date, not from the 1st of January thereafter. Railway v. Jackson, 62 Tex. 209. This interest, however, in this class of cases, should be calculated at 8 per cent only to the time the law was changed, and at 6 per cent since that time. This seems well settled. Railway v. Humphries, 4 Texas Civ. App. 333[4 Tex. Civ. App. 333], and authorities there cited. Appellee offers in his brief to remit any excess in interest we may find, but the verdict does not afford the necessary data to enable us to make the calculation.

The other assignments need not be considered, as the judgment of the court below must be reversed and the cause remanded for the errors above indicated.

Reversed and remanded.