This case originated in the justice court, was appealed and finally tried in the county court at law No. 1, and from its judgment this appeal was prosecuted. The facts will be stated as we think they were established by the evidence and as substantially found by the jury. Earnest Draper, appellant, was indebted to J. Earl Presley, ap-pellee, in the sum of $85, being the unpaid balance of a promissory note, payable In installments, originally for $190, given as part purchase money for an automobile (De Soto coach) and w&s secured by a chat*1126tel mortgage lien on the car. The mortgage contained provisions giving the mortgagee the right to repossess the car in case of default, also the power to sell at private sale for the satisfaction of the debt. On February 21, 1935, because appellant was in arrears two $15 installments, appellee turned the claim over to D. H. Duboise, an adjuster, with authority to collect the debt or repossess the car, agreeing to pay him a fee of $3. On the date just named, Du-boise was in the act of taking possession of the car when, as the result of negotiations and after telephone communications by both appellant and Duboise with appel-lee’s place of business, 'an agreement was reached whereby appellant surrendered possession of the car to Duboise, who agreed, for and on behalf of appellee (as we find from the evidence and as substantially found by the jury), to hold the car for ten days, and that, if within the time mentioned appellant paid the two last installments ■and the expense item of $3, aggregating $33, possession of the car would be surrendered to him. The extension agreement was evidenced by a written memorandum executed by Duboise, as folio,ws: “2/21 1935. Received from Earnest Draper one 30 Desoto coach License 275-005, to be held ten days for above party for past-due payments at this date $30.00 fee $3.00,” signed “Texas Auto Collection Bureau, by D. H. Duboise.” The evidence, satisfactorily shows that, before the expiration of ten days, appellant tendered to appellee $33 and demanded the return of his car. It was also shown that on same day the tender was made appellant, having perfected an arrangement for the money, ofr fered to pay appellee in full the balance due upon the note. Both the tender and the offer to pay the indebtedness in full were declined by appellee, for the reason that, prior to the expiration of the ten days allowed, he sold the car and had parted with its possession. Thereupon appellant filed ■this suit in the justice court against both appellee and Duboise for damages for the alleged conversion of the car, alleging the value of same to be $198.50, for which amount he prayed judgment, less the amount owing appellee. Appellant also urged an alternative plea, which, under our view of the case, becomes immaterial. Ap-pellee’s answer contained, among other defenses, a general denial and a special plea denying Duboise’s agency and authority to contract for appellee, as alleged by appellant
.At the conclusion of the evidence, appellee moved for an instructed verdict, which was denied, and the court submitted the case to a jury on two issues — one as to the agency of Duboise, and the other in regard to the value of the car — to which the jury answered that Duboise had apparent authority to enter into the ten-day extension agreement, and that the reasonable market value of the car was $234. Appellant moved for judgment, which was denied; appellee moved for judgment non obstante veredicto, admitting that appellant was entitled to recover $7 under his alternative plea; the motion was sustained by the court, and judgment accordingly was rendered in favor of appellant for $7 against both appellee and Duboise. It is difficult to perceive on what theory the court rendered judgment against Duboise. The evidence shows indisputably that he acted simply as Presley’s agent in repossessing the car, and had no connection whatever with its subsequent sale by Presley, hence the suit as to him should have been dismissed.
The action of the court in the respect just mentioned is challenged by appellant, the contention being that, as the findings of the jury were amply sustained by evidence, the court erred in rendering judgment for appellee, non obstante veredicto, and erred in refusing to sustain appellant’s motion for judgment.
It is too well settled to require citation of authorities that a court should never instruct a verdict in behalf of either party if the issue of fact to be determined is supported by evidence upon which reasonable minds could differ; and that judgment non obstante veredicto should never be rendered in a case, unless a directed verdict would be proper. Article 2211, R.. S., as amended by Acts 1931, c. 77, § 1, Vernon’s Ann.Civ.St. art. 2211. But we do not think the case at bar belongs to that category. The evidence shows with reasonable certainty that appellant was induced to surrender possession of the automobile to Duboise (for and on behalf of appellee) on the assurance, evidenced by the writing, that the car would be held for ten days, and that, if within the time mentioned the overdue installments and the expense item were paid, the car would be returned to appellant. The record also discloses that, before the expiration of the ten-day extension, appellant tendered to appellee the sum of $33, being the aggregate of the two overdue installments and *1127the expense item, mentioned in the written memorandum, and demanded the car. Ap-pellee refused the tender and failed to deliver the car, because, prior to the expiration of the ten-day limit, he sold and had parted with its possession.
We think the extension agreement was supported by a valuable consideration, in that, in addition to the amount of the overdue installments, appellant agreed to pay the expense item of $3 incurred by appel-lee when the claim was turned over to Duboise. So, at the time appellee sold the automobile, title to same was in appellant, hence the sale, being in derogation of his rights, constituted a conversion. The case of R-F. Finance Corp. v. Jones, SO S.W.2d 475, 476, by the Amarillo Court of Civil Appeals, is directly in point; also see Spencer v. Rhea Finance Co., Tex.Civ.App. 62 S.W.2d 631.
Having reached the conclusion that the court erred in rendering judgment for appellee non obstante veredicto, and as the matter to be decreed is certain, we are confronted with the problem of rendering such judgment as the court below should have rendered. Article 1856, R.S. Although the jury found the value of the automobile to be $234, appellant cannot recover in excess of the value of the car as alleged — -that is, $198 less $88 (being the balance due on the note plus the expense item of $3), or $110, for which amount judgment will be rendered for appellant against appellee J. Earl Presley.
Appellee argues forcefully that, as appellant’s petition failed to specifically allege the time and place of the alleged conversion, and as the evidence in regard to the value of the automobile was also indefinite, judgment for appellant could not properly be based thereon. The objection to the pleading is in the nature of a special exception, which should have been urged in limine, hence it cannot be considered, urged simply as a counter proposition or in argument. Considered in connection with the entire case, we think the evidence as to value is referable to the time and place of the actual conversion, and could not have been considered otherwise by the jury.
The judgment of the trial court is reversed; the cause as to Duboise is dismissed, and judgment is here rendered for appellant against appellee J. Earl Presley for the sum of $110, with 6 per cent, interest thereon from the date of entry of the judgment in the court below, and all costs incurred both in this and in the court below.
Reversed and rendered.