Larson v. Middleton

On Rehearing.

In the original opinion in this case, this court reversed the judgment of the trial court, and rendered judgment in favor of the appellant Larson as against the claims of personal liability asserted against said Larson by the appellee, Middleton. On motion for rehearing, the appellee contends that this court erred, in the various holdings made, and especially in rendering the case. By reason of the various contentions advanced in appellee’s motion for rehearing, we have reexamined the record, but we have discovered no reason for changing our views upon the various legal propositions presented, discussed, and disposed of in the original opinion. In fact, a reconsideration of the appel-lee’s contentions confirms our faith in the correctness of the views expressed in the original opinion.

Upon the proposition that it is our duty merely to reverse and remand, rather than reverse and render, the appellee makes a rather vigorous showing, citing such authorities as Associated Oil Co. et al. v. Hart (Tex. Com. App.) 277 S. W. 1043, 1045, wherein this language is used:

“It is the rule, where a judgment has been reversed, to remand to the trial court rather than to render, where the ends of justice will be better subserved thereby. Such remanding has often been ordered to supply additional testimony, to amend the pleadings, and even to show jurisdiction”. — numerous authorities ■being cited in support of the rule.

We think this rule a sound one, supported by reason and authority, and that it should have liberal application in all eases wherein the record warrants it. We do not believe, the record in this case warrants its application. The appellee insists that, if the judgment must be reversed, it should be remanded for another trial in order that he may have an opportunity to establish some character of equitable lien on certain properties alleged to belong to West Adams Petroleum Corporation, and which he now understands to be in possession of the appellant Larson. No such character of case is presented by this record, and, from an inspection of both the pleadings and the testi-*123niony, no such case was attempted to be' presented to tbe trial court. Tbe appellee’s major contention in tbe trial court was that Larson was personally liable for tbe $6,000 promised bim by tbe manager of tbe West Adams Petroleum Corporation as a consideration for tbe conveyance to that company of a one-eigbth interest owned by appellee, Middleton, in a certain lease. It was tbe contention that Larson’s personal liability arose from tbe fact that be was an officer in tbe corporation or possibly bad some character of possession (not specifically shown) of tbe assets of tbe corporation. So it is clear to us that to grant tbe appellee’s contention and reverse, rather than reverse and render, would be in effect extending to bim an opportunity to- plead and prove a cause of action different from that evidenced by this record, whether viewed from the standpoint of tbe pleadings or that of the evidence.

There is another valid reason why we should not remand this cause for another trial. The record discloses that it was upon tbe motion of appellee, Middleton, that tbe trial court peremptorily instructed in bis favor a verdict for $6,000, etc., and entered a personal judgment against Larson therefor. The appellee must be presumed to have been satisfied with such verdict and judgment. Sovereign Camp, W. O. W. v. Patton (Tex. Sup.) 295 S. W. 913; Tripplehorn v. Ladd-Hannon Oil Corp. (Tex. Civ. App.) 8 S.W.(2d) 217 (writ refused). Certainly the appellee may not now claim that tbe trial court in any manner misled bim or caused bim to forego any right or remedy, either of law or fact, to which be was entitled. Such being tbe case, it is not one where tbe ends of justice require that this court merely reverse the trial court’s judgment, rather than render it.

The appellee’s motion for - rehearing is overruled.