I agree to the reversal ordered, but not upon the grounds stated in Judge LANE'S opinion, that is, "that there was no evidence showing that appellant had agreed to purchase the tanks, or that it had converted them," and that "the evidence clearly shows that the agent or agents of appellant took possession of the tanks in the presence of appellee, put oil therein in his presence, and, without his protest, under the belief that further negotiations would be carried on looking to their lease or purchase, and that as soon as they ascertained they could not come to an agreement with Carter, the oil was removed from the tanks."
While the direct testimony as to the authority of Mr. Clements to make it was scanty, considering all the circumstances tending toward that inference, there being, too, no request from appellant that that question be submitted to the jury, I think there was enough to justify the jury's finding that an agreement to purchase was effected, and, further, that the answer to special issue No. 3 cannot be said to be without support.
Obviously there was no such complete contract expressed between the parties as would itself constitute a sale, but, as the court correctly told the jury in explanation of special issue No. 1, the agreement might be implied from their acts as well as determined from their words; throughout his testimony, Carter never receded from his consistent declaration that he always stipulated successively with each and all of appellant's several representatives that he would not lease but would only sell his tanks, and that they could not use them upon any other condition; this being true, and his statement further being that in the face of this invariable and known restriction, appellant took possession of and used the tanks through Mr. Clements' order, there was an acceptance of his offer to only sell through an act. 13 C. J. 275; Mott v. Jackson, 172 Ala. 448, 55 So. 528; Lester v. Hutson (Tex.Civ.App.)167 S.W. 322; Petroleum Products Dis. Co. v. Alton Tank Line (1914)165 Iowa 398, 146 N.W. 52; Shaenfield v. Hall Safe Fixture *Page 638 Co. (Tex.Civ.App. 1913) 157 S.W. 462; Chelf v. Smith (by the Virginia Special Court of Appeals) 131 S.E. 846, 44 A.L.R. 1175.
It seems to me that, in these undisputed circumstances, Mr. Clements ordered the use of the tanks any way at his peril, and, that as he confessedly did not subsequently obtain any modification or reduction of Mr. Carter's offer into one for a mere lease, his principal was bound by what he had thus done.
But there was testimony from another source to the effect that Mr. Carter did not so invariably stick to the imposition of the condition that he would not lease but would only sell; upon this issue the witness Rosser testified that when he told Mr. Carter what Mr. Clements said, that he did not have any authority to buy the tanks and that he (Rosser) could not talk about buying the tanks, that Mr. Carter said:
"Well; I would rather sell the tanks, but go ahead, the Gulf Production Company will treat me right, either rent or buy them."
The matter having been properly raised by the pleadings also, the appellant requested the submission of this question to the jury in its requested charge No. 4, which the trial court refused, as follows:
"Did or did not the defendant take possession of and use the tanks with the understanding on the part of Rosser, the driller for the defendant, that the defendant would use the tanks, and that the question of purchase, lease, or rental would be taken up later by the plaintiff with the defendant? Answer yes or no."
This action, in my opinion, constituted reversible error. G. H. S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534; Colorado Santa Fe Ry. Co. v. Rowe (Tex.Com.App.) 238 S.W. 908; Suttle v. Texas Electric R. R. Co. (Tex.Civ.App.) 272 S.W. 256.
While the evidence for appellee was sufficient to support the pertinent finding in its favor, there was no justification for not submitting the opposing contention when thus properly presented by both pleading and testimony.
Neither can I accept this court's finding, in effect, that appellee was clearly shown to have acquiesced in appellant's taking possession of his tanks under the belief that further negotiations would be carried on looking to their lease or purchase; that was the very issue so refused submission by the trial court at appellant's request, and, to say the least about the state of the evidence upon it, was a disputed question of fact. Upon the one hand, Carter testified that he stood always upon his condition that if they used his tanks at all it must be as upon a sale, whereas appellant's witness Rosser swore that he waived that requirement. Under his own version of what he did, Carter had the right to assume that if they took possession of his tanks, it would be upon the expectation of buying them, hence it was unnecessary for him to protest or prevent them from doing that.
I agree, under the undisputed facts, that there was no permanent conversion, hence appellee was in no event entitled to the full value on that theory; but if what was actually done did not amount in law to a sale, then, in the plain absence of a lease, there seems to me to have been a conversion for the length of time appellant used the property, under such authorities as Baldwin v. Davidson (Tex.Civ.App.) 127 S.W. 562, and France v. Gibson (Tex.Civ.App.) 101 S.W. 536. Indeed, although not therein so denominated, that appears to be basis for this court's order of a remand. I think the order should have been grounded upon the refusal of the requested charge referred to.