Brooks Supply Co. v. Gallinger

279 S.W. 524

Opinion

BAROUS, J.

The First State Bank of Eleetra filed this suit against E. L. Gallinger, J. N. Groesbeck, and appellant, Brooks Supply Company, a corporation, seeking judgment on a note for $2,500 with interest and attorney’s fees, which Gallin&er had executed to it, and alleged that it had a mortgage on “one complete Lucey special drilling rig, with 2,200 feet of drill pipe and tool joints,” and that the defendants had converted said property to their use and benefit, and by reason thereof each of them was liable. Gallinger answered, admitting the execution of the note and mortgage, and, by way of cross-action against his codefendants, Groesbeck and Brooks Supply Company, alleged that they had converted the property to their use and benefit, and prayed for judgment over against them for the value thereof, and prayed that, after the bank’s debt was satisfied, the remainder of the value of the property be paid to him. Groesbeck filed a general demurrer and general denial. Appellant, Brooks Supply Company, filed a general demurrer, special exceptions, general denial, and special plea that it had purchased from Groesbeck for value, without any notice of said mortgage, and, in event judgment was rendered against it, asked for' judgment against Groesbeck. The cause was tried to a jury, and submitted on special issues, and resulted in a judgment being rendered against appellant for $9,000 in favor of Gallinger, and in favor of the bank for $3,564.93, same to be paid out of the amount awarded to Gallinger, and in favor of the Brooks Supply Company against Groesbeck for $9,000. Brooks Supply Company alone has appealed.

Appellant complains of the action of the trial court in overruling its general demurrer and special exceptions to the cross-action filed against it by Gallinger for the conversion of the property. It contends that said cause of action is separate and distinct from that alleged by the bank, and cannot be properly joined in the suit brought by the bank for the conversion of the property. We overrule these assignments. The bank, in order- to establish its cause of action against appellant, was required to show that it had converted the mortgaged property to its use and benefit, and to further show that the property belonged to the defendant Gallinger, and that it had a mortgage thereon. If the Brooks Supply Company did convert the mortgaged property to its use, all parties who had any interest in or to same were proper parties to join in a common suit for the value thereof, since their equities could and should be adjudicated in one litigation. The policy of the law is and should be to avoid multifariousness in lawsuits. Terrell Electric Co. v. New Moline Plow Co. (Tex. Civ. App.) 265 S. W. 1104; Harless v. Haile (Tex. Civ. App.) 174 S. W. 1020; U. S. Fidelity & Guaranty Co. v. Fossati, 97 Tex. 497, 80 S. W. 74; Keel & Son v. Gribble-Carter Grain Co. (Tex. Civ. App.) 143 S. W. 235.

Appellant contends that the description of the property in the mortgage held by appellee bank was not sufficient to identify same. We overrule this assignment. The mortgage described the property as one Lucey special drilling rig, with 2,200 feet of drill pipe and tool joints, in E. L. Gallinger’s possession, and located in Limestone county, Tex. Richardson v. Washington, 88 Tex. 339, 31 S. W. 614; McDavid v. Phillips, 100 Tex. 73, 94 S. W. 1131; F. & M. Bank v. Howell (Tex. Civ. App.) 268 S. W. 776.

Appellant complains of the action of the trial court in permitting certain witnesses to testify that the phrase “Lucey special drilling rig” had a technical meaning, and that in the vernacular of oil men same had a well-defined meaning, sufficient to enable a person to identify same thereby. The description in the mortgage having been by that name, and' the question being raised as to whether same was sufficient to put a purchaser on'notice, the evidence was admissible for said purpose.

Over appellant’s objection, after five or six different witnesses had testified as experts that the phrase “Lucey special drilling rig” was a technical name, they were then permitted to give a list of the various and sundry articles and items which each witness, in his opinion, considered necessary to consti tute a “Lucey special drilling rig,” and each of said witnesses gave a materially different list of wbat, in bis opinion, would constitute said rig, and appellee Gallinger’s testimony as to what constituted same was materially different from tlie articles lie alleged in his petition were converted by appellant. Appellant objected to all of said testimony, because it was irrelevant and immaterial as to wbat would, in tbe opinion of different witnesses, constitute a “Lucey special drilling rig,” and because it was adding to tbe property on wbicb appellee bank claimed a mortgage. We sustain all appellant’s assignments with reference thereto.

The issues to be determined in this case were: First, wbat property tbe appellee bank’s mortgage actually covered, wbicb could only be established, by showing wbat constituted tbe drilling rig appellee Gallinger owned at tbe time be executed tbe mortgage, together -with the 2,200 feet of drill pipe and tool joints; and, second, wbat property actually owned by Gallinger was taken by appellant ; and, third, tbe value thereof.

Tbe same witnesses were further permitted to testify over appellant’s objection, tbe value of a Lucey special drilling rig as described by them. This was error. The value of that part of tbe rig owned by Gal-linger and that part thereof on which tbe bank held tbe mortgage at tbe time of tbe conversion were tbe questions to be determined, and not tbe value of wbat expert witnesses thought constituted a Lucey special drilling rig. Their estimates of value should have been limited to the actual drilling rig received by appellant.

AppeRant requested the trial court to instruct tbe jury to return a verdict for it as against tbe cross-action of appellee Gal-linger, because be was not entitled to, nor was be in possession of, tbe property at tbe time of tbe alleged conversion. Tbe testimony shows that, a few^montbs prior to tbe time when appellant received tbe property, a suit bad been instituted in Limestone county by O. E. Marshall against appellee Gallinger, and a writ of attachment bad been issued, and tbe sheriff’s return in said cause shows that tbe property in question bad been levied on by him, and the judgment rendered therein states tbe attachment lien bad been foreclosed, and tbe clerk was directed to issue an order of sale of tbe property. Tbe papers in said cause seem to have been lost. It was the contention of appellees that, as a matter of fact, no order of sale was issued, and no legal sale made thereof under said attachment lien, and the jury so found. If tbe property was in tbe bands of tbe sheriff under and by virtue of said attachment, and same was illegally taken from him by appel- ' lant, it would defeat neither Gallinger’s nor tbe bank’s right to recover their damages occasioned thereby. A mortgagee may maintain an action against one who wrongfully converts tbe mortgaged property, or a part thereof, whether at tbe time be is entitled to tbe possession of tbe same or not. Scaling v. First Nat. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715. Where tbe property has been destroyed or put beyond bis reach, tbe owner thereof is entitled to maintain a suit for damages for its conversion, although be was not entitled to, nor in possession of, tbe property at tbe time of its seizure. Cox v. Patten (Tex. Civ. App.) 66 S. W. 64; George Adams & Frederick Co. v. South Omaha Nat. Bank, 123 F. 641, 60 C. C. A. 579.

Appellant further contends that, if it was not entitled to an instructed verdict in its favor against Gallinger, by reason of tbe fact that Gallinger was not in possession of, nor entitled to, tbe possession of tbe property, tbe trial court should have credited tbe judgment wbicb was rendered against it in favor of Gallinger with tbe amount of tbe Marshall judgment, which, was paid by its codefendant Groesbeck at tbe time said Groesbeck obtained possession of tbe property. We overrule these assignments. There were no pleadings on tbe part of appellant wbicb would authorize tbe trial court giving such relief. Tbe facts with reference thereto are not fully developed, and we do not deem it necessary to, and do not, pass on tbe question as to whether, under any state of facts, if properly pleaded, appellant would be entitled to such relief.

For tbe errors herein indicated, tbe judgment of tbe trial court is reversed, and tbe cause remanded.