Joseph W. Moon Buggy Co. v. Moore-Hustead Co. , 1917 Tex. App. LEXIS 672 ( 1917 )

Appellant sued the appellee, the Moore-Hustead Company and Houston Shipp, its assignee for the benefit of creditors, to recover the possession of a number of buggies which had been sold by appellant to the Moore-Hustead Company, or their value, in case the specific property could not be recovered. The petition alleged that the buggies had been sold and delivered under a contract, and the title to same had been reserved to appellant, if not paid, setting out the contract, describing the buggies, and stating their value to be $1,571.75. A writ of sequestration was sued out, the buggies seized and replevied by Houston Shipp, who filed a general exception, general denial, and answered specially in effect that Moore-Hustead Company having become financially embarrassed, and desirous of protecting all creditors, without preference, made a general assignment to him as assignee, conveying all of its property for the benefit of creditors, and he had taken possession of same; that Moore-Hustead Company was the purchaser of said property, and notwithstanding the reservation of title in said contract it was the understanding and intention between the parties that Moore-Hustead Company was the purchaser, and plaintiff was not to be considered the owner thereof. The sequestration was quashed, and a trial upon the merits was had, the court instructing the jury to return a verdict for defendant, which was accordingly done, and judgment rendered for defendants, from which this appeal is taken.

Complaint is made of the quashing of the sequestration on account of the alleged defective affidavit; one ground being that the affidavit failed to allege "that it was not sued out for the purpose of injuring either of the defendants, when there were more than one defendant." The statute in reference to affidavits for sequestration does not require such language to be so used. The second ground is that the value of each article is not stated separately. There were 23 buggies sequestrated, their aggregate value being placed at $1,571.75. All were listed and described by catalogue and factory numbers. Ten of them were valued separately at various amounts; 13 were grouped by 3's and 2's, and each group was valued separately. For instance, one group of 3, each buggy being alike, the aggregate value was given, and the same as to the groups of 2 each. The buggies in each group were like each other in that particular group, were described alike, were of the same make, and were of the same value, and the value of each can readily be ascertained by simple calculation. This valuation is substantially in compliance with the statute. Therefore there was error in quashing the sequestration.

On the merits of the case we think the court erred in giving a peremptory instruction to find for defendants. Appellant closes its petition with the prayer as follows:

"Wherefore plaintiff states that it is the owner of and entitled to the possession of all said buggies and vehicles of the value aforesaid of fifteen hundred seventy-one and 75/100 ($1,571.75) dollars, by virtue of and according to the terms of the written contracts hereinbefore mentioned. Wherefore it prays that, defendants having already answered, upon a final hearing hereof, it have and recover of and from said defendants the possession of the buggies hereinbefore described, alleged to have been in their possession at the time of the institution of this suit, or for the sum of $1,571.75, in case said specific property cannot be recovered, and for all such other and further relief as to the court may seem just and proper in the premises; and as in duty bound plaintiff will ever pray."

The petition also showed that plaintiff had by written contract sold said buggies to Moore-Hustead Company on a credit and reserved title thereto in itself until paid for. This shows a sale of the buggies, and under the statute (article 5654) said contract created only a mortgage; therefore it had no right as owner to recover the possession of said buggies. But as mortgagee it had the right, its debt being unpaid, to the possession of said buggies and have them sold for the payment of its debt, whether the same has become due or not. Article 5660, R.S. 1911. The plaintiff's allegations showed facts which entitled it to the possession of the property, not as owner, but as mortgagee; and, Moore-Hustead Company having disposed of the property to Houston Shipp as assignee for the benefit of its creditors, the allegation that it was owner was but surplusage under the facts and should be disregarded.

Under the law, as we understand it, appellant could not recover possession of the buggies as owner; but, it being shown that appellant holds a mortgage on the buggies, it would be inequitable to allow the judgment of the lower court to stand, and it will be reversed, and appellant allowed to amend and allege the proper grounds for relief, and upon which it is entitled to recover. Bank v. City of Terrell, 78 Tex. 450 -461, 14 S.W. 1003.

The judgment is reversed, and the cause remanded.