(concurring).
I concur with Judge O’Quinn, who has written the opinion for the court, that the judgment of the lower court in favor of ap-pellee on an instructed verdict should be affirmed, but not on the theory of his opinion that the relation between appellee and Fowler was that of bailor and bailee.
The following statement is taken from appellee’s brief: “If the car was purchased, he was going to make all the payments on the car; was going to purchase a new Ford automobile; that the car that he was actually driving when the collision occurred was not the car he intended to trade for, but instead was a used car, though nevertheless a Ford.”
The following statement is from Judge O’Quinn’s opinion, that Fowler “desired to trade the Chevrolet in on the car he wished to purchase, and Carl Markley valued it at $225 to which Fowler agreed, but informed Markley that the Chevrolet car belonged to his mother and that he would have to get her consent to trade it in as a payment on the car he desired to purchase.” It appears from these statements and the general statement made by Judge O’Quinn, that Markley and Fowler had agreed upon the terms of the car trade, and that nothing was left to be done to close the trade except the securing of the consent of Fowler’s mother. The facts on that issue are thus stated by Judge O’Quinn :
“Markley had one of his employes to bring out a new Ford V-8 car and fill it up with gasoline and oil, and told Fowler that he could drive it- — the new Ford — over to Highlands and see his mother and get her consent for him, Fowler, to trade in the old Chevrolet as a payment on the car that Fowler wished to purchase. Markley filled out a blank transfer of the old Chevrolet car for Fowler’s mother to sign trans*312ferring the Chevrolet car to him, Markley, to be used by Fowler as a payment on the car to be purchased, and told Fowler to get in the new Ford V-8 car and to go that clay to see his mother and get her to sign the transfer of the Chevrolet, and to return to Beaumont with the new Ford that same day. Fowler took the transfer papers that Markley gave him, got in the new Ford car and started to see his mother at Highlands, as Markley told him to do. While enroute travelling on Highway No. 90, the collision occurred. Fowler testified that he was not to receive any commission for perfecting the transaction, if he should get his mother to sign the transfer of the Chevrolet car to Markley and he purchased the used car which he had selected, but that he had to have the consent of his mother to trade in her old car as a payment on the car to be purchased by him from Markley, and that he desired to get for his mother the best amount possible for her car, and that he was to pay the remainder of the consideration for the car he purchased, if the deal was consummated, for his own use.”
On these facts it follows, in my judgment, that the business of Fowler’s trip to see his mother was a joint adventure for the mutual benefit of Fowler and appellee. The essential thing necessary to close the deal between appellee and Fowler was the mother’s consent. To secure her consent they planned a trip to her home — on the trip, appellee contributing its car and gas and Fowler contributing his time; Mark-ley prepared the papers, and Fowler was to secure her signature to these papers. The only purpose of the trip was the securing of the mother’s consent, and in this there was no conflict of interest between appellee and Fowler; there was no dealing at arm’s length. They were mutually interested in securing her consent, without which they could not make their trade. True, the trip had only one purpose, but as said in 15 R.C.L. 500, “A joint adventure generally relates to a single transaction.”
I do not agree with Judge O’Quinn in the following conclusions taken from his opinion: (a) “Markley had no right of control or actual control over Fowley in the trade which he might make with his mother in obtaining her permission to trade in the old car.”
Markley not only had the “right of control” but exercised it; he, quoting from Judge O’Quinn’s opinion, “told Fowler to get in the new Ford V-8 car and to go that day to see his mother and get her to sign the transfer of the Chevrolet, and to return to Beaumont with the new Ford that same day.” But this “right of control,” on the whole record, was not that of a master, but the limited control of a member of the joint adventure.
(b) “Fowler had the untrammeled right to make any arrangement with his mother he could — as to whether he would pay for the second hand car, or whether the ownership of the second hand car should be in him or his mother, and whether his mother should have the right to use the second hand car, and any other matters which might occur between him and his mother in arriving at their understanding in the matter. Fowler’s interest in the transaction was not in line with that of Markley.”
On the facts as I understand them, Fowler did not have “the untrammelled right” to make a deal with his mother. The terms of the deal had been agreed upon between him and Markley, the papers had been prepared, and in securing his mother’s consent, he could not make the trade with her in violation of the instructions Mark-ley had given him. It was immaterial on the issue before us whether Fowler would pay for the secondhand car, whether he would own the secondhand car, or whether his mother should have the right to use it.
(c) “Fowler desired to obtain the utmost value possible for his mother’s old car, this to redound to both his and her benefit, not to Markley’s — his and his mother’s interest' was adverse to that of Markley.”
As I understand the facts, Fowler had no authority, as between him and Markley, to offer his mother more than the agreed price of $225. In submitting to his mother the price to be paid by appellee for her old car, there was no conflict of interest between appellee and Fowler, because the price had already been agreed upon between them.
Appellant was not injured by a prospective purchaser of the car in the collision — by Fowler driving the car he proposed to buy, as in Bertrand v. Mutual Motor Co., Tex.Civ.App., 38 S.W.2d 417, nor by Fowler’s attempt to exhibit and demonstrate to his mother the car he proposed to buy as in Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897, *313and Kantola v. Lovell Automobile Co., 157 Or. 534, 72 P.2d 61. These, and the other authorities cited by Judge O’Quinn, am nounce the law of bailor and bailee, and simply hold that the facts therein discussed constituted a bailment. These authorities cited sustain the rule announced by Judge O’Quinn, “that a prospective purchaser of a car driving same at the direction of the owner for the.purpose of determining whether he will buy same, or for the purpose of exhibiting sáme to some relative of the user for the same purpose, is a bailee in possession of the car for a specified purpose, and not an agent of the owner.” Since Fowler was not driving appel-lee’s car for the purpose of determining whether he would buy it, or for the purpose of exhibiting it to some relative or other person, as an essential element of his buying the car, the authorities cited are not, in my judgment, in point.
Appellant plead his case and tried it, and judgment was rendered by the court and he perfected his appeal from the judgment, on the theory of master and servant. On no theory of his petition did he present for adjudication the issue of joint adventure. The case must be reviewed in this court on the theory on which it was tried in the lower court — that of master and servant; since the evidence did not present that issue, judgment was properly instructed in favor of appellee.