Ellis v. Cochran, Trustee

28 S.W. 243, 8 Tex. Civ. App. 510, 1894 Tex. App. LEXIS 204

• Court: Court of Appeals of Texas
• Decided: November 1, 1894
• Docket: No. 684.
• Status: Published

Opinion

WILLIAMS, Associate Justice.

One F. M. Bay- was engaged in business in the city of Houston, as a lumber dealer, and had in his stock, in addition to lumber, sash, doors, blinds, and other material used for the building of houses, a lot of paints and oils. On the 28th day of January, 1893, he executed a deed conveying to appellee, Cochran, in trust to secure certain creditors, the property described therein, as follows: “All my stock of lumber of every class and kind, materials, fixtures, and improvements, situated on block number 114, S. S. B. B., in the city of Houston, Harris County, Texas, and used by me in conducting a lumber business in said city of Houston; all my wagons, horses, mules, and harness used by me in connection with 'and in carrying on said business; said teams, etc., consisting of four mules and one horse and harness for same; three wagons; all book accounts due and owing to me; all papers and books, iron safe, and fixtures of every kind contained in the ofSce, situated on said premises aforesaid, and used in connection with said business.”

Hnder this deed Cochran took possession of all the property, including the paints and oils, and was holding it as trustee, when, on the 7th day of February, 1893, the appellant, Ellis, as sheriff of Harris County, levied upon the paints and oils under a writ of attachment in favor of -F. Hammer Paint Company, and against F. M. Bay, and subsequently sold and converted the same to the use of the plaintiffs in the attachment.

. This suit was brought by appellee to recover the value of the goods thus converted, and the trial resulted in a judgment in his favor, from which this appeal is prosecuted.

It was shown that, in his business, Bay kept such articles as lumber, sash, doors, blinds, and other material needed in the construction of houses, and that, shortly before he executed the deed of trust, he concluded to keep, also, paints and oils, and purchased the lot in question from the plaintiffs in the attachment suit, and had never paid for it.

Others, engaged in the same character of business in Houston as that of Bay, kept in stock paints and oils to supply the wants of their customers, though there was among them no uniform custom in this particular.

When the deed was executed, nothing was said as to the paints and oils, but all of the property on hand, including them, was at once delivered by Bay to the trustee. Both Bay and Cochran testified, that it was the intention of the former to convey the paints and oils.

The contention of appellants is, that the deed did not pass the property in controversy, and that the parol evidence, above stated,- was inadmissible.

Upon a mere inspection of the instrument, the court could not determine what particular articles passed by the descriptive terms used. Anything which Bay had and used “in conducting a lumber business in Houston,” which was fitly and appropriately described by the word “material,” evidently passed to the trustee. What those things were, was a question which must be solved by parol evidence identifying them, and “must be solved so as to give effect to the intention of the parties, to be collected as well from the words of the instrument as from the circumstances attending its execution.” Smith v. McCullough, 104 U. S., 27. It was proper, therefore, to show by evidence the character and scope of the business conducted by Bay, and the articles of property used by him in conducting it, in order to ascertain the things to which the term “materials” could have application. In this connection, it was admissible also to show the course of dealing among other dealers in the same business, though in this instance, such evidence was perhaps unnecessary and inconclusive.

When it appeared that Bay was a dealer in materials for building-purposes, and kept such articles as paints and oils, the clear operation of the deed was, we think, to pass them to the trustee as “materials.” That word is constantly and commonly used to designate any article employed in the erection and completion of buildings. It includes paints and oils as clearly as it includes lumber, sash, doors, blinds, and other things commonly called building material. 14 Am. and Eng. Encyc. of Law, 976; Jones on Chat. Mort-., secs. 53, 54.

The statement of Bay and Cochran as to their intention was, we think, inadmissible. The intention is to be ascertained by an interpretation and construction of the language used in the deed, in connection with evidence showing the surroundings of the parties and identifying the property, which such language appropriately designates; but, as by such a construction the intention in this instance is ascertained to ■be the same as that to which the parties testified, the admission of this evidence was harmless error.

Delivered November 1, 1894.

The judgment is affirmed.

Affirmed.