George Wetherbee v. George Green, Charles H. Camp and George B. Brooks.

Decided April 5.

Heard January 5, 6.

The other Justices concurred.

Marston & Hatch for plaintiff in error.

Clark & Day for defendants in error.

Cooley, J.

The defendants in error replevied of Wetherbee a quan­tity of hoops, which he had made from timber cut upon their land. Wetherbee defended the replevin suit on two grounds. First, he claimed to have cut the timber under a license from one Sumner, who was formerly tenant in common of the land with Green, and had been authorized by Green to give such license. Before the license was given, however, Sumner had sold his interest in the land to Camp and Brooks, the co-plaintiffs with Green, and had conveyed the same by warranty deed; but Wetherbee claimed and offered to show by parol evidence, that the sole purpose of this conveyance was to secure a pre-existing debt from Sumner to Camp and Brooks, and that consequently it amounted to a mortgage only, leaving in Sumner, under our statute, the usual right of a mortgagor to occupy and con­trol the land until foreclosure. He also claimed that the authority given by Green to Sumner had never been revoked, and that consequently the license given would be good against Green, and constitute an effectual bar to the suit in replevin, which must fail if any one of the plaintiffs was precluded from maintaining it.

But if the court should be against him on this branch of the case, Wetherbee claimed further that replevin could not be maintained for the hoops, because he had cut the timber in good faith, relying upon a permission which he supposed proceeded from the parties having lawful right to give it, and had, by the expenditure of his labor and money, converted the trees into chattels immensely more valuable than they were as they stood in the forest, and thereby he had made such chattels his own. And he offered to show that the standing timber was worth twenty-five dollars only, while the hoops replevied were shown by the evidence to be worth near seven hundred dollars; also, that at the time of obtaining the license from Sumner he had no knowledge of the sale of Sumner’s interest, but, on the other hand, had obtained an abstract of the title to the premises from a firm of land agents at the county seat, who kept an abstract book of titles to land in that county, which abstract showed the title to be in Green and Sumner, and that he then purchased the timber, relying upon the abstract, and upon Sumner’s statement that he was authorized by Green to make the sale. The evidence offered to establish these facts was rejected by the court, and the plaintiffs obtained judgment.

The principal question which, from this statement, appears to be presented by the record, may be stated thus: Has a party who has taken the property of another in good faith, and in reliance upon a supposed right, without intention to commit wrong, and by the expenditure of his money or labor, worked upon it so great a transformation as that which this timber underwent in being transformed from standing trees into hoops, acquired such a property therein that it cannot be followed into his hands and reclaimed by the owner of the trees in its improved condition?

The objections to allowing the owner of the trees to reclaim the property under such circumstances are, that it visits the involuntary wrong-doer too severely for his unin­tentional trespass, and at the same time compensates the owner beyond all reason for the injury he has sustained. In the redress of private injuries the law aims not so much to punish the wrong-doer as to compensate the sufferer for his injuries; and the cases in which it goes farther and inflicts punitory or vindictive penalties are those in which, the wrong-doer has committed the wrong recklessly, willfully, or maliciously, and under circumstances presenting elements of aggravation. Where vicious motive or reckless disregard of right are not involved, to inflict upon a person who has taken the property of another, a penalty equal to twenty or thirty times its value, and to compensate the owner in a proportion equally enormous, is so opposed to all legal idea of justice and right and to the rules which regulate the recov­ery of damages generally, that if permitted by the law at all, it must stand out as an anomaly and must rest upon peculiar reasons.

As a general rule, one whose property has been appro­priated by another without authority has a right to follow it and recover the possession from any one who may have received it; and if, in the meantime, it has been increased in value by the addition of labor or money, the owner may, nevertheless, reclaim it, provided there has been no destruc­tion of substantial identity. So far the authorities are agreed. A man cannot generally be deprived of his prop­erty except by his own voluntary act or by operation of law; and if unauthorized parties have bestowed expense or labor upon it that fact cannot constitute a bar to his reclaiming it, so long as identification is not impracticable. But there must, nevertheless, in reason be some limit to the right to follow and reclaim materials which have under­gone a process of manufacture. Mr. Justice Blackstone lays down the rule very broadly, that if a thing is changed into a different species, as by making wine out of another’s grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials con­verted.—2 BL Com., 404. We do not understand this to be disputed as a general proposition, though there are some author­ities which hold that, in the case of a willful appropriation, no extent of conversion can give to the willful trespasser a title to the property so long as the original materials can be traced in the improved article. The distinction thus, made between the case of an appropriation in good faith and one based on intentional wrong, appears to have come from the civil law, which would not suffer a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and given them a form which precluded their being restored to their original condition.—2 Kent, 363. While many cases have followed the rule as broadly stated by Blackstone, others have adopted the severe rule of the civil law where the conversion was in willful disregard of right. The New York cases of Betts v. Lee, 5 Johns., 385; Curtis v. Groat, 6 Johns., 168; and Chandler v. Edson, 9 Johns., 362, were all cases where the willful trespasser was held to have acquired no property by a very radical conversion, and in Silsbury v. McCoon, 3 N. Y., 378, 385, the whole subject is very fully examined, and Buggies, J., in delivering the opinion of the court, says that the com­mon law and the civil law agree “that if the chattel wrongfully taken come into the hands of an innocent holder who, believing himself to be the owner, converts the chattel into a thing of different species, so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind, the change in the species of the chattel is not an intentional wrong to the original owner. It is, therefore, regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace the identity into the manu­factured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change; but he is put to his action for dama­ges as for a thing consumed, and may recover its value as it was when the conversion or consumption took place,” and further on he says of the civil law, with which the common law is supposed by him to harmonize:—“The acknowledged principle of the civil law is that a willful wrong-doer acquires no property in the goods of another either by the wrongful taking, or by any change wrought in them by his labor or skill, however great that change may be. The new product in its improved state belongs to the owner of the original materials, provided it be proved to be made from them; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a willful violator of his right of property.” In, further illus­tration of the same views we refer to Hyde v. Cookson, 21 Barb., 104; Martin v. Porter, 5 M. & W., 351; Wild v. Holt, 9 M. & W., 672; Baker v. Wheeler, 8 Wend., 508; Snyder v. Vanx, 2 Rawle, 427; Riddle v. Driver, 12 Ala., 590.

It does not become necessary for us to consider whether the case of Silsbury v. McCoon, 3 N. Y., 378, which, over­ruled the prior decisions of the Supreme Court (reported in 4 Denio, 425, and 6 Hill, 332), has not recognized a right in the owner of the original materials to follow them under circumstances when it would not be permitted by the rule as recognized by the authorities generally. That was the case where a willful trespasser had converted corn into whisky, and the owner of the corn was held entitled to the manufactured article. The rule as given by Blackstone would confine the owner, in such case, to his remedy to recover damages for the original taking. But we are not called upon in this case to express any opinion regarding the rule applicable in the case of a willful trespasser, since the authorities agree in holding, that when the wrong had been involuntary, the owner of the original materials is ­precluded, by the civil law and common law alike, from following and reclaiming the property after it has under­gone a transformation which converts it into an article substantially different.

The cases of confusion of goods are closely analogous. ­It has always been held that he who, without fraud, inten­tional wrong, or reckless disregard of the rights of others, mingled his goods with those of another person, in such manner that they could not be distinguished, should, never­theless, be protected in his ownership so far as the circum­stances would permit. The question of motive here becomes of the highest importance; for, as Chancellor Kent says, if the commingling of property “was willfully made without mutual consent, * * the common law gave the entire property, without any account, to him whose prop­erty was originally invaded, and its distinct character destroyed. Popham’s Rep. 38, pl. 2. If A will willfully intermix his corn or hay with that of B, or casts his gold into another’s crucible, so that it becomes impossible to distinguish, what belonged to A from what belonged to B, the whole belongs to B.—Popham’s Rep. ub. supra; Warde v. Ayre, 2 Bulst. 323,” 2 Kent 364-5; and see 2. Bl. Com., 404; Hart v. Ten Eyck, 2 Johns. Ch., 62; Gordon v. Jenney, 16 Mass., 465; Treat v. Barber, 7 Conn., 280; Bar­ron v. Cobleigh, 11 N. H, 561; Roth v. Wells, 29 N. Y., 486; Willard v. Rice, 11 Met., 493; Jenkins v. Steanka, 19 Wis., 128; Hesseltine v. Stockwell, 30 Me., 237. But this rule only applies to wrongful or fraudulent intermix­tures. There may be an intentional intermingling and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own; or, that he was about to mingle his with his neighbor’s, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own or be obliged to take and pay for his neighbor’s, as he would have been under the civil law.—Morton J. in Ryder v. Hathaway, 21 Pick., 305. In many cases there will be difficulty in deter­mining precisely how he can be protected with due regard to the rights of the other party; but it is clear that the law will not forfeit his property in consequence of the accident or inadvertence, unless a just measure of redress to the other party renders it inevitable.—Story on Bailm., § 40; Sedg. on Dams., 483.

The important question on this branch of the case appears to us to be, whether standing trees, when cut and manufactured into hoops, are to be regarded as so far changed in character that their identity can be said to be destroyed within the meaning of the authorities. And as we enter upon a discussion of this question, it is evident at once, that it is difficult, if not impossible, to discover any inva­riable and satisfactory test which can be applied to all the cases which arise in such infinite variety. “If grain be taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held in the old English law that the property is so altered as to change the title.—Bro. tit. Property, pl. 23;” 2 Kent, 363. But cloth made into garments, leather into shoes, trees hewn or sawed into timber, and iron made into bars, it is said may be reclaimed by the owner in their new and original, shape.—Sedg. on Dams., 484; Snyder v. Vaux, 2 Rawle, 427; Betts v. Lee, 5 Johns., 348; Curtis v. Groat, 6 Johns., 168; Brown v. Sax, 7 Cow., 95; Silsbury v. McCoon, 4 Denio, 333, per Bronson J.; Ibid, 6 Hill, 426, per Nelson, Ch. J.; Ibid, 3 N. Y., 386, per Ruggles, J. Some of the cases place the right of the former owner to take the thing in its altered condition upon the question whether its identity could be made out by the senses.—Year Book 5, H. 7, fo. 15, pl. 6.; 4 Denio, 335 note. But this is obviously a very unsatisfactory test, and in many cases would wholly defeat the purpose which the law has in view in recognizing a change of title in any of these cases. That purpose is not to establish any arbitrary distinctions, based upon mere physical reasons, but to adjust the redress afforded to the one party and the penalty inflicted upon the other, as near as circumstances will permit, to the rules of substantial justice.

It may often happen that no difficulty will be experi­enced in determining the identity of a piece of timber which has been taken and built into a house; but no one disputes that the right of the original owner is gone in such a case. A particular piece of wood might perhaps be traced without trouble into a church organ, or other equally valuable article; but no one would defend a rule of law which, because the identity could be determined by the senses, would permit the owner of the wood to appropriate a musical instrument, a hundred or a thousand times the value of his original materials, when the party who, under like circumstances, has doubled the value of another man's corn by converting it into malt, is permitted to retain it; and held liable for the original value only. Such distinc­tions in the law would be without reason, and could not be tolerated. When the right to the improved article is the point in issue, the question, how much the property or labor of each has contributed to make it what it is, must always be one of first importance. The owner of a beam built into the house of another loses his property in it, because the beam is insignificant in value or importance as compared to that to which it has become attached, and the musical instrument belongs to the maker rather than to the man whose timber was used in making it,—not because the timber cannot be identified, but because in bring­ing it to its present condition the value of the labor has swallowed up and rendered insignificant the value of the original materials. The labor, in the case of the musical instrument, is just as much the principal thing as the house is in the other case instanced; the timber appropri­ated is in each case comparatively unimportant.

No test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels by accession, unless it keeps in view the circumstance of relative values. When we bear in mind the fact that what the law aims at is the accomplishment of substantial equity, we shall readily perceive that the fact of the value of the materials having been increased a hundred fold, is of more importance in the adjustment than any chemical change or mechanical transformation, which, however radical, neither is expensive to the party making it, nor adds materially to the value. There may be complete changes with so little improvement in value, that there could be no hardship in giving the owner of the original materials the improved article; but in the present case, where the defendant’s labor—if he shall succeed in sustaining his offer of testi­mony—will appear to have given the timber in its present condition nearly all its value, all the grounds of equity exist which influence the courts in recognizing a change of title under any circumstances.

We are of opinion that the court erred in rejecting the testimony offered. The defendant, we think, had a right to show that he had manufactured the hoops in good faith, and in the belief that he had the proper authority to do so; and if he should succeed in making that showing, he was entitled to have the jury instructed that the title to the timber was changed by a substantial change of identity, and that the remedy of the plaintiff was an action to recover damages for the unintentional trespass.

This view will dispose of the case upon the present record. Upon the other points we are not prepared to assent entirely to the views of the plaintiff in error. It does not appear to us important that the deed from Sum­ner to Camp and Brooks was intended as a mere security. Under such a deed Sumner would have had a right of redemption, but it does not follow that he would have been entitled to possession, and to all the other rights of mort­gagor in the courts of law. When a deed absolute in form is given to secure a debt, the purpose generally is, to vest in the grantee a larger power of control and disposition than he would have by statute under an ordinary mort­gage; and we are not prepared to say that the statute—Comp. L., § 4614—which forbids ejectment by mortgagees before foreclosure was intended to reach a case of that description. We think, however, that the mere circum­stance of the sale of Sumner’s interest did not operate in law as a revocation of the authority previously given to Sumner to sell the timber. It is quite possible that Green would not have given his authority had Sumner not been tenant in common of the land with him; but there is no absolute presumption of the law to that effect; and we cannot say that Green would have revoked the authority had he been aware of Sumner’s conveyance. Nor was it necessary that the license given by Sumner to Wetherbee should have been in any particular form. A mere license to enter upon land and cut timber does not confer a legal right to do so; but it nevertheless protects the licensee so far as he has acted under it before revocation, and the pro­tection does not depend upon its form, but upon what has been done having proceeded by consent. However informal the consent may have been, the land owner cannot be allowed, by afterwards recalling it, to make the licensee a trespasser for what he has done in reliance upon it.

For the reasons given, the judgment must be reversed, with costs, and a new trial ordered.

Court of Appeals of Texas, Houston (14th Dist.).

No. C14-91-00840-CV.

Eddie KOTIS, Appellant, v. NOWLIN JEWELRY, INC., Appellee.

Dec. 31, 1992.

Before ROBERTSON, DRAUGHN and JUNELL, JJ.

Randy E. Moore, Lake Jackson, for ap­pellant.

Laurence E. Boyd, Angleton, for appellee.

OPINION

DRAUGHN, Justice.

Eddie Kotis appeals from a judgment declaring appellee, Nowlin Jewelry, Inc., the sole owner of a Rolex watch, and awarding appellee attorney’s fees. Kotis raises fourteen points of error. We affirm.

On June 11, 1990, Steve Sitton acquired a gold ladies Rolex watch, President model, with a diamond bezel from Nowlin Jewelry by forging a check belonging to his brother and misrepresenting to Nowlin that he had his brother’s authorization for the pur­chase. The purchase price of the watch, and the amount of the forged check, was $9,438.50. The next day, Sitton telephoned Eddie Kotis, the owner of a used car deal­ership, and asked Kotis if he was interested in buying a Rolex watch. Kotis indicated interest and Sitton came to the car lot. Kotis purchased the watch for $3,550.00. Kotis also called Nowlin’s Jewelry that same day and spoke with Cherie Nowlin.

Ms. Nowlin told Kotis that Sitton had purchased the watch the day before. Ms. Nowlin testified that Kotis would not im­mediately identify himself. Because she did not have the payment information avail­able, Ms. Nowlin asked if she could call him back. Kotis then gave his name and num­ber. Ms. Nowlin testified that she called Kotis and told him the amount of the check and that it had not yet cleared. Kotis told Ms. Nowlin that he did not have the watch and that he did not want the watch. Ms. Nowlin also testified that Kotis would not tell her how much Sitton was asking for the watch.

John Nowlin, the president of Nowlin’s Jewelry, testified that, after this call from Kotis, Nowlin’s bookkeeper began attempt­ing to confirm whether the check had cleared. When they learned the check would not be honored by the bank, Nowlin called Kotis, but Kotis refused to talk to Nowlin. Kotis referred Nowlin to his at­torney. On June 25, 1990, Kotis’ attorney called Nowlin and suggested that Nowlin hire an attorney and allegedly indicated that Nowlin could buy the watch back from Kotis. Nowlin refused to repurchase the watch.

After Sitton was indicted for forgery and theft, the district court ordered Nowlin’s Jewelry to hold the watch until there was an adjudication of the ownership of the watch. Nowlin then filed suit seeking a declaratory judgment that Nowlin was the sole owner of the watch. Kotis filed a counterclaim for a declaration that Kotis was a good faith purchaser of the watch and was entitled to possession and title of the watch. After a bench trial, the trial court rendered judgment declaring Nowlin the sole owner of the watch. The trial court also filed Findings of Fact and Con­clusions of Law.

In point of error one, Kotis claims the trial court erred in concluding that Sitton did not receive the watch through a transaction of purchase with Nowlin, with­in the meaning of Tex.Bus. & Com.Code Ann. § 2.403(a). Where a party challenges a trial court’s conclusions of law, we may sustain the judgment on any legal theory supported by the evidence. Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex.App.—­Dallas 1987, no writ). Incorrect conclu­sions of law will not require reversal if the controlling findings of facts will support a correct legal theory. Valencia v. Garza, 765 S.W.2d 893, 898 (Tex.App.—San Anton­io 1989, no writ).

Kotis contends there is evidence that the watch is a “good” under the UCC, there was a voluntary transfer of the watch, and there was physical delivery of the watch. Thus, Kotis maintains that the transaction between Sitton and Nowlin was a transac­tion of purchase such that Sitton acquired the ability to transfer good title to a good faith purchaser under § 2.403.

Section 2.403 provides:

A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer good title to a good faith pur­chaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though

(1) the transferor was deceived as to the identity of the purchaser, or

(2) the delivery was in exchange for a check which is later dishonored, or

(3) it was agreed that the transaction was to be a “cash sale”, or

(4) the delivery was procured through fraud punishable as larcenous under the criminal law.

Tex.Bus. & Com.Code Ann. § 2.403(a) (Ver­non 1968).

Neither the code nor case law defines the phrase “transaction of purchase.” “Pur­chase” is defined by the code as a “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an in­terest in property.” Tex.Bus. & Com.Code Ann. § 1.201(32) (Vernon 1968). Thus, only voluntary transactions can constitute trans­actions of purchase.

Having found no Texas case law concern­ing what constitutes a transaction of pur­chase under § 2.403(a), we have looked to case law from other states. Based on the code definition of a purchase as a voluntary transaction, these cases reason that a thief who wrongfully takes the goods against the will of the owner is not a purchaser. See Suburban Motors, Inc. v. State Farm Mut. Automobile Ins. Co., 218 Cal.App.3d 1354, 268 Cal.Rptr. 16, 18 (1990); Charles Evans BMW, Inc. v. Williams, 196 Ga.­App. 230, 395 S.E.2d 650, 651-52 (1990); Inmi-Etti v. Aluisi, 63 Md.App. 293, 492 A.2d 917, 922 (1985). On the other hand, a swindler who fraudulently induces the vic­tim to deliver the goods voluntarily is a purchaser under the code. Inmi-Etti, 492 A.2d at 922; Williams, 395 S.E.2d at 652.

In this case, Nowlin’s Jewelry vol­untarily delivered the watch to Sitton in return for payment by check that was later discovered to be forged. Sitton did not obtain the watch against the will of the owner. Rather, Sitton fraudulently in­duced Nowlin’s Jewelry to deliver the watch voluntarily. Thus, we agree with appellant that the trial court erred in con­cluding that Sitton did not receive the watch through a transaction of purchase under § 2.403(a). We sustain point of er­ror one.

In point of error two, Kotis contends the trial court erred in concluding that, at the time Sitton sold the watch to Kotis, Sitton did not have at least voidable title to the watch. In point of error nine, Kotis chal­lenges the trial court’s conclusion that Nowlin’s Jewelry had legal and equitable title at all times relevant to the lawsuit. The lack of Texas case law addressing such issues under the code again requires us to look to case law from other states to assist in our analysis.

In Suburban Motors, Inc. v. State Farm Mut. Automobile Ins. Co., the Cali­fornia court noted that § 2.403 provides for the creation of voidable title where there is a voluntary transfer of goods. 268 Cal. Rptr. at 18. Section 2.403(a)(l)-(4) set forth the types of voluntary transactions that can give the purchaser voidable title. Where goods are stolen such that there is no voluntary transfer, only void title re­sults. Id. at 19; Inmi-Etti, 492 A.2d at 921. Subsection (4) provides that a pur­chaser can obtain voidable title to the goods even if “delivery was procured through fraud punishable as larcenous un­der the criminal law.” Tex.Bus. & Com.Code Ann. § 2.403(a)(4) (Vernon 1968). This sub­section applies to cases involving acts fraudulent to the seller such as where the seller delivers the goods in return for a forged check. See Inmi-Etti, 492 A.2d at 921. Although Sitton paid Nowlin’s Jewel­ry with a forged check, he obtained posses­sion of the watch through a voluntary transaction of purchase and received voida­ble, rather than void, title to the watch. Thus, the trial court erred in concluding that Sitton received no title to the watch and in concluding that Nowlin’s retained title at all relevant times. We sustain points of error two and nine.

In point of error three, Kotis claims the trial court erred in concluding that Kotis did not give sufficient value for the watch to receive protection under § 2.403, that Kotis did not take good title to the watch as a good faith purchaser, that Kotis did not receive good title to the watch, and that Kotis is not entitled to the watch under § 2.403. In points of error four through eight, Kotis challenges the trial court’s findings regarding his good faith, his hon­esty in fact, and his actual belief, and the reasonableness of the belief, that the watch had been received unlawfully.

Under § 2.403(a), a transferor with voidable title can transfer good title to a good faith purchaser. Tex.Bus. & Com.Code Ann. § 2.403(a) (Vernon 1968). Good faith means “honesty in fact in the conduct or transaction concerned.” Tex.Bus. & Com. Code Ann. § 1.201(19) (Vernon 1968). The test for good faith is the actual belief of the party and not the reasonableness of that belief. La Sara Grain v. First Nat’l Bank, 673 S.W.2d 558, 563 (Tex.1984).

Kotis was a dealer in used cars and testified that he had bought several cars from Sitton in the past and had no reason not to trust Sitton. He also testified that on June 12, 1990, Sitton called and asked Kotis if he was interested in buying a La­dies Rolex. Once Kotis indicated his inter­est in the watch, Sitton came to Kotis’s place of business. According to Kotis, Sitton said that he had received $18,000.00 upon the sale of his house and that he had used this to purchase the watch for his girlfriend several months before. Kotis paid $3,550.00 for the watch. Kotis further testified that he then spoke to a friend, Gary Neal Martin, who also knew Sitton. Martin sagely advised Kotis to contact Nowlin’s to check whether Sitton had fi­nanced the watch. Kotis testified that he called Nowlin’s after buying the watch.

Cherie Nowlin testified that she received a phone call from Kotis on June 12, 1990, although Kotis did not immediately identify himself. Kotis asked if Nowlin’s had sold a gold President model Rolex watch with a diamond bezel about a month before. When asked, Kotis told Ms. Nowlin that Sitton had come to Kotis’ car lot and was trying to sell the watch. Ms. Nowlin testi­fied that Kotis told her he did not want the watch because he already owned a Rolex. Ms. Nowlin told Kotis that Sitton had pur­chased the watch the day before. Kotis asked about the method of payment. Be­cause Ms. Nowlin did not know, she agreed to check and call Kotis back. She called Kotis back and advised him that Sitton had paid for the watch with a check that had not yet cleared. When Ms. Nowlin asked if Kotis had the watch, Kotis said no and would not tell her how much Sitton was asking for the watch. Ms. Nowlin did ad­vise Kotis of the amount of the check.

After these calls, the owner of Nowlin’s asked his bookkeeper to call the bank re­garding Sitton’s check. They learned on June 15, 1990 that the check would be dishonored. John Nowlin called Kotis the next day and advised him about the dishon­ored check. Kotis refused to talk to Nowlin and told Nowlin to contact his attorney. Nowlin also testified that a reasonable amount to pay for a Ladies President Rolex watch with a diamond bezel in mint condi­tion was $7,000.00-$8,000.00. Nowlin maintained that $3,500.00 was an exorbi­tantly low price for a watch like this.

The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.—­Houston [1st Dist.] 1984, writ ref'd n.r.e.). Kotis testified that he lied when he spoke with Cherie Nowlin and that he had already purchased the watch before he learned that Sitton’s story was false. The judge, as the trier of fact, may not have believed Kotis when he said that he had already pur­chased the watch. If the judge disbelieved this part of Kotis’ testimony, other facts tend to show that Kotis did not believe the transaction was lawful. For example, when Kotis spoke with Nowlin’s, he initial­ly refused to identify himself, he said that he did not have the watch and that he did not want the watch, he refused to divulge Sitton’s asking price, and he later refused to talk with Nowlin and advised Nowlin to contact Kotis’ attorney. Thus, there is evi­dence supporting the trial court’s finding that Kotis did not act in good faith.

There are sufficient facts to uphold the trial court’s findings even if the judge had accepted as true Kotis’ testimony that, de­spite his statements to Nowlin’s, he had already purchased the watch when he called Nowlin’s. The testimony indicated that Kotis was familiar with the price of Rolex watches and that $3,550.00 was an extremely low price for a mint condition watch of this type. An unreasonably low price is evidence the buyer knows the goods are stolen. See Willis v. State, 724 S.W.2d 87, 89 (Tex.App.—Dallas 1986), aff'd in part, rev’d in part on other grounds, 790 S.W.2d 307 (Tex.Crim.App.­1990); Fillmore v. State, 647 S.W.2d 300, 304 (Tex.App.—Corpus Christi 1982, no pet.). See also Bowers v. State, 414 S.W.2d 929, 930-31 (Tex.Crim.App.1967). Although the test is what Kotis actually believed, we agree with appellee that we need not let this standard sanction willful disregard of suspicious facts that would lead a reasonable person to believe the transaction was unlawful. Cf. Citizen’s Bridge Co. v. Guerra, 152 Tex. 361, 258 S.W.2d 64, 69-70 (1953).1 Thus, we find sufficient evidence to uphold the trial court’s findings regarding Kotis’ lack of status as a good faith purchaser. We over­rule points of error three through eight.

In point of error ten, Kotis contends the trial court erred in concluding that Kotis converted the watch by refusing to return it to Nowlin’s and by refusing to allow its return to Nowlin’s. In point of error elev­en, Kotis claims the trial court erred in concluding that Nowlin’s is entitled to a constructive trust over the watch. Kotis’ argument under these points depends upon our finding that he was a good faith pur­chaser. Because we have upheld the trial court’s finding that Kotis was not a good faith purchaser, we need not address these points.

In point of error twelve, Kotis challenges the trial court’s conclusion that Nowlin’s was entitled to possession of the watch and that Kotis is not entitled to possession or title to the watch. Having upheld the trial court’s finding that Kotis was not a good faith purchaser, we must also uphold the trial court’s finding that Nowlin’s, and not Kotis, is entitled to possession and title to the watch. We overrule point twelve.

In point of error thirteen, Kotis challenges the trial court’s conclusion that Nowlin’s is entitled to recover attorney’s fees and post-judgment interest against Kotis. Under the Declaratory Judgment Act, a court may “award costs and reason­able and necessary attorney’s fees as are equitable and just.” Tex.Civ.Prac. & Rem. Code Ann. § 37.009 (Vernon 1986). The trial court found that $5,883.57 was a rea­sonable fee for Nowlin’s attorney and there was evidence supporting this amount. We overrule point of error thirteen.

In Kotis’ final point of error, he claims the trial court erred in denying his counter­claims for damages for conversion and for attorney’s fees and costs. Having upheld the trial court’s conclusions that Kotis was not a good faith purchaser and was not entitled to possession and title to the watch, we need not address this point.

We affirm the trial court’s judgment.

JUNELL, J., not participating.

1

The Citizens Bridge Co. discussion of bad faith was later held to be consistent with the UCC test for good faith under § 1.201(19). See Wilson v. O'Connor, 555 S.W.2d 776, 780 (Tex.Civ.App.—­Dallas 1977, writ dism’d).