(dissenting).
I respectfully dissent in the view that the jury findings upon which the award to Alvarez must rest are without support in the evidence. I would hold that the recovery of Alvarez is limited to the value of his equity in the repossessed automobile.
Problems of “no evidence” are often difficult of solution. Admittedly, we have the power to say, as the majority has here, that there is “some evidence” to support essential findings. But in doing so we should steadfastly adhere to reliable and acceptable standards by which evidence is weighed. I do not think the majority has done so here. The reasons for my views can best be shown by a more detailed analysis of the evidence, including the testimonial words of Alvarez in fuller context.
Alvarez purchased a 1962 Ford station wagon from El Paso Auto Center, Inc., in December, 1961. He financed the purchase by executing a note and chattel mortgage in favor of Auto Center which evidenced a down payment of $1,000.00 and a financed balance of $3,530.16. The balance was to be paid in thirty-six equal monthly installments of $98.06 due and payable on the twentieth day of each month beginning in January of 1962. The mortgage authorized repossession of the automobile and foreclosure of the mortgage upon default. SIC purchased the Alvarez note and mortgage from Auto Center. Alvarez was late from two to twenty-five days on each subsequent monthly payment to SIC and on occasions paid charges for late payments. The present controversy followed a visit by Alvarez to the offices of SIC in El Paso. He testified as follows under interrogation by his Counsel:
Q (BY MR. DWYER:) “Now, sir, I will ask you if sometime in February, 1964 * if you became behind in your payments with the SIC Company?
“Yes >
“Will you tell the jury here what occurred, if anything, at that time in regard to payments? ¡O
“Well, at this time I don’t have a job and I was one month behind and a few days more-, I got behind two months. I stopped at the office and talked to the — I don’t know the man in charge of this kind of — I don’t know whether it is adjustments or something; I need more days to— to make the two payments. . >
“He says, ‘Well, we take the station wagon until you pay the two payments.’
“I agree with him to give — I told— I said ‘Okay, only my station wagon *142is at my home; I don’t have the keys here.’ And the next day some — this —this man working for this company stopped at my home; he come to my home, my wife is at my home, my wife gave him the keys for this man, and I wait there for next week to get payment, this time I was working now, and I just stop at the office to make a payment Friday, a little late, and this — it is time to close and the man working in this department is busy and I stopped in the front, I tried to pay — to make payments and the lady working in the front, she said two payments; she said two payments and I needed to talk to the man, you know, in charge of this office, and I don’t have a chance to talk, I don’t know what is the name, I don’t remember the name. I wait for this next day, Saturday, and I stopped in the office and he is not in the office at that time. I stopped on Saturday. I need to wait next whole week because I work too far and I don’t have opportunity to stop in the office and make payments because it' is closed by the time I come, and next Friday, I had — next Saturday, I had opportunity to talk to the man in charge of this office and he say ‘Well, the station wagon is not here; you like to go to El Paso Ford and take the station wagon; you will recognize the car.’
sjc ⅜ ¾: * * ⅜
Q “Yes. Now, explain to the jury here about this matter of the agreement you made, if any, when you got— you were a payment behind and I believe you testified — explain to the jury about that part of it, what agreement you reached with them about making up the two payments?
A “Well, I don’t have any — you know, any paper or any note or nothing, only talked to the man in charge of this office, and he say he take the station wagon, after you pay the two months — because I stop at the office before the two months late, a few days before, I just stop and I talk — to wait for the payment of next week because I work right now and he says ‘yes, okay, the only trouble is I need to bring the station wagon here to the office,’ and I accept to this.
Q “Did you agree to pay any late charges ?
A “Yes, I accept the late charge.
⅝ ⅜ ⅝ * ⅝ ⅜
Q “Continue.
A “When I talk to this man, he says yes, I would have to pay charges because after ten days, you have to pay charges. That is okay, I pay that two months, or pay late, — not enough. I only talked to this man working in the office, you know. I agree to pay the charge for the pay late.”
An employee of SIC testified that Alvarez contacted him at the office of SIC on March 6, 1964, and stated that he would make two payments on March 20; that he failed to do so and SIC mailed him a late notice; that Alvarez came to the office on March 23 and said he would pay on Friday, March 27, which was agreeable with him; that Alvarez returned on March 27 and stated he was unable to make the past due payments and authorized SIC to pick up the automobile on the following day, March 28. It was further shown that the ledger sheet of Alvarez in the offices of SIC was stamped “Repossessed — Date 3-31-64”,
The pertinent jury findings were that SIC “agreed to hold the 1962 Ford * * * until after March 31, 1964, to permit plaintiff to pay the payments for February, 1964, and March, 1964” (No. 1) ; that SIC “on or about March 31, 1964, did take and convert to its own use the plaintiff’s 1962 Ford in question” (No. 4); that “the reasonable market value * * * of said 1962 Ford *143in question, on or about March 31, 1964, at its location in El Paso County, Texas” was “$1,500.00” (No. 7) ; that Alvarez was “entitled to exemplary damages against the defendant” in the sum of “$5,000.00” (Nos. 8 and 9).
It is the rule that the agreement of a mortgagee to hold mortgaged property until a date certain within which delinquent payments may be made, and of the mortgagor to pay an additional charge for late payment, is supported by consideration and is enforceable; in such case, there is a breach of the agreement and a conversion if the mortgagee sells the property within the grace period. Commercial Credit Corporation v. Flores, 345 S.W.2d 432 (Tex.Civ. App.1961 writ ref., n. r. e.); Woodard v. Tatum, 277 S.W.2d 943 (Tex.Civ.App.1955, no writ). A mortgagor establishing a cause of action against his mortgagee for conversion is entitled to recover the value of his equity in the property at the time. Commercial Credit Corporation v. Flores, supra. But here there is no satisfactory support in the evidence for the finding of the jury that SIC “agreed to hold the 1962 Ford in question, until after March 31, 1964, to permit plaintiff to pay the payments for February, 1964, and March, 1964”; and hence no support for the further finding of the jury that SIC “on or about March 31, 1964, did take and convert to its own use the plaintiffs 1962 Ford in question.” The testimony of Alvarez which can be said to bear upon this problem is his vague and - ambiguous statement that on some unidentified occasion “[h]e [referring to an unidentified ‘man in charge’ at the office of SIC] says, ‘Well, we take the station wagon until you pay the two payments.’ ” Alvarez was here answering questions propounded by his counsel phrased in terms of “what occurred” at that time “in February, 1964,” at which time he was one payment — the February 20 payment — in arrears. The two payments referred to by the person Alvarez was purporting to quote would necessarily be those of February 20 — which was past due — and of March 20 — which was to become due on that date. This is further indicated by the testimony of the employee of SIC that Alvarez contacted him on March 6 and stated that he would make two payments on March 20. On the occasion of this first visit, either in February as indicated by the testimony of Alvarez or on March 6 as indicated by the testimony of the SIC employee, Alvarez was in arrears in one payment and SIC could have exercised its right of repossession. It is not reasonable to suppose that at such time and under such circumstances SIC would have agreed to indefinitely hold the automobile beyond March 31. The most that can be reasonably inferred from the evidence is that SIC agreed to forbear upon the promise of Alvarez to make the two payments on March 20 and pay late charges, while at the same time warning Alvarez that the right of repossession would be asserted if he failed to make the promised two payments. Further forbearance of SIC is shown in the fact that it did not repossess the automobile upon the failure of Alvarez to make the two payments on March 20, but instead sent him a late notice and appeared to accept his further promise on March 23 that he would make the two payments on March 27. The testimony of the employee of SIC that Alvarez authorized repossession of the automobile on the following day, March 28, finds no dispute in the testimony of Alvarez or elsewhere in the record. It is quite clear to me that there is no evidence in the correct sense of this term in our appellate review that anyone acting for SIC agreed to hold the mortgaged automobile after it came into its possession, and until after March 31, for the purpose of permitting Alvarez to meet the past due February and March, 1964, payments. If so, there was no conversion when the automobile was tendered into the possession of SIC on March 28, or when, on March 31, it exercised the contract right to declare the automobile repossessed.
Alvarez filed a trial amendment alleging the following:
“Plaintiff does hereby further allege that at the time that the vehicle in question *144was sold to Ezequiel Rodriguez in the amount of $1951.00, Plaintiff had a payoff balance with SIC in the amount of $1239.89 and that therefore Plaintiff is entitled to the difference between what he owed, to-wit: $1239.89 and $1951.00.”
I construe this as a plea for the value of the equity of Alvarez, i. e. the difference between the reasonable market value of the automobile and the amount of his admitted current indebtedness. The jury found the value of the automobile to be $1500.00, which when reduced by the judicially admitted debt of $1,239.89, established the equity of Alvarez to be $260.11. I would award him this sum.
There is one other matter upon which I wish to reserve judgment. It is stated in Commercial Credit Corporation v. Flores, 345 S.W.2d 432 (Tex.Civ.App.1961, writ ref., n. r. e.), that:
“A plaintiff who establishes his cause of action for conversion is entitled to '.recover the value of the converted property at the time of the wrongful taking together with interest from that date. 17 Tex.Jur.2d 168, 169. In cases where a mortgagor seeks damages from the mortgagee for wrongful taking of the mortgaged property, recovery is limited to the mortgagor’s equity in the property, that is ‘to compensation for the loss sustained less the debt owed the mortgagee’ ”.
See also Runnels Chevrolet Co. v. Clifton, 46 S.W.2d 426 (Tex.Civ.App.1932, no writ); Thos. Goggan and Bros. v. Garner, 119 S.W.2d 341 (Tex.Civ.App.1909, no writ); and cf. Gathright v. Russell, 383 S.W.2d 441 (Tex.Civ.App.1964, writ dism’d). These decisions suggest, particularly in view of the judicial admission of the amount of his existing mortgage debt to SIC, that even under the majority conclusion that “there is some evidence of a conversion”, the recovery of Alvarez should be limited to his equity in the automobile.
HAMILTON, REAVLEY, and McGEE, JJ., join in this dissent.Italics are those of the writer in each instance.