T. W. Marse & Co. v. Flockinger

189 S.W. 1017, 1916 Tex. App. LEXIS 1116

• Court: Court of Appeals of Texas
• Decided: November 15, 1916
• Docket: No. 5690.
• Status: Published

Opinion

RICE, J.

In 1914 John T. Barber rented certain land from Miss Alice McFaddin near Taylor upon which he raised a crop of cotton, com, etc. On the 27th of July , of said year he sold 50 acres of this cotton, together with certain farming implements, to L. L. Poole, for the sum of $525, taking his note therefor, due October 1, 1914, with 10 per cent, interest and 10 per cent, attorney’s fees secured by a chattel mortgage upon said crop, which was thereafter, on July 30th, duly filed for record in Williamson county. On the next day Barber gave his note to appellees for the sum of $431.-55, payable October 1st, bearing interest and attorney’s fees. To secure this note Barber, by written transfer, assigned to appellees the Poole note then held by the City National Bank of Taylor as collateral for $50 which he (Barber) owed the bank, of which assignment both the Bank and Marse & Co.' were immediately advised. The next day, August 1, 1914, Barber gave his note to appellants for $195.80, as well as for any amount thereafter advanced by them to him, due October 1, 1914, bearing interest and calling for attorney’s fees. Appellants thereafter furnished him advances to the amount of $170, which included $50 advanced by them to him to pay his debt to the bank for which the Poole note was held by the bank as collateral, aggregating in all $366.40. This note was secured by mortgage on the same crop of cotton, which mortgage was likewise forthwith recorded in Wiilliamson county; but before the execution of said last note and mortgage Poole ánd Barber rescinded their trade, and Barber, without the knowledge or consent of appellees, regained possession of the Poole note upon payment to the bank of the $50, and delivered same to Poole, who removed from Williamson county about the last of December, 1914. Thereafter Marse & Co. took possession of said cotton, amounting to 5,790 pounds of lint, of the value of $401, by virtue of a trade with Barber, and after paying to Miss McFaddin the rent, $101.45, and paying for the picking, $126.-18, and the $50 which they advanced to Barber to pay the City National Bank, applied the balance, $125, as a credit.op Barber’s indebtedness to them; and this suit was brought by appellees against appellants for conversion of said cotton, based upon the facts above set out.

.Appellants answered by general demurrer, several special exceptions, a general denial, and specially defended on the ground that they were entitled to said cotton by reason of the execution and delivery to them by Barber of 'the note and mortgage above referred to, upon which they had advanced to him and paid on his account the several amounts above set out, and further defended on the ground that the Poole note claimed hy appellees as collateral security for their note against Barber never in fact came irito their possession, whereby they had never acquired any lien on said cotton.

The case was tried before the court without a jury, and resulted in a judgment against appellants in favor of appellees for the sum of $125.18, from which appellants prosecute this appeal.

[1] Appellants excepted to appellees’ petition on the ground that neither Poole nor Barber were made parties defendant to this suit, asserting that, in a suit by a mortgagee against a purchaser of the mortgaged property, the mortgagor is a necessary party, unless a judgment for the alleged debt and foreclosure of the mortgage had been previously obtained. Neither of them were made parties to this suit. We think this exception was properly overruled, because, as we understand the law, it was not necessary that either of said parties should be made parties defendant. While they are proper parties, they are not necessary parties. See 38 Cyc. 2053; article 5660, R. S.; Liberal Loan & Realty Co. v. Meyers, 186 S. W. 433; Fouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435; Focke v. Blum, 82 Tex. 436, 17 S. W. 770; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715; Ward v. Gibbs, 10 Tex. Civ. App. 287, 30 S. W. 1125; Rector v. Mill Co., 103 S. W. 710; Oswald v. Giles, 178 S. W. 677.

[2-4] We do not think that the court erred in admitting parol testimony to show the contents of the Poole note: (1) Because it appears that the same was not within the jurisdiction of the court, and therefore secondary evidence was admissible to prove ’its contents. Barber testified that he had never seen anything of such note since the day he returned it to Poole, and Poole was shown to be a citizen of Lynn county at the time of the trial. See 17 Cyc. 531; article 3649, R. S.; Smith v. Traders’ Bank, 82 Tex. 368, 17 S. W. 779; Sayles v. Bradley Co., 92 Tex. 406, 49 S. W. 209; M., K. & T. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88; Missouri Pacific v. Gernan Co., 84 Tex. 141, 19 S. W. 461; Greenleaf on Evid. p. 84, par. 558; Coons v. Renick, 11 Tex. 134, 60 Am. Dec. 230; Western Union v. Smith, 26 S. W. 217; Gulf Ry. Co. v. Harris, 72 S. W. 71. (2) As the court found that the note was placed beyond its jurisdiction by the acts of appellants, we think they ought not to be heard to demand its production before secondary evidence could be resorted to to prove its contents. See 17 Cyc. 529; Cheatham v. Riddle, 8 Tex. 162; Gulf Ry. Co. v. Harris, supra. Even if we are mistaken as to this, we think the error, if any, is harmless, for the reason that the Poole mortgage, which was introduced in evidence without objection, contained recitations substantially describing the Poole note, which it was intended to secure.

[5] Appellants insist that, since the evidence shows that the Poole note never came into possession of appellees, they never acquired any right thereto. This contention, we think, is not well taken, because it clearly appears from the evidence that the Poole note was transferred by Barber by written assignment, to appellees for the purpose of securing his note to them, for which reason we hold that the title to same immediately vested in appellees, as well as. the mortgage intended to secure it, and their right thereto could not be defeated by Barber’s subsequent acquisition and delivery of same to Poole without their consent.

[6] Appellants present several assignments complaining of findings of fact on the part of the court, which it is not necessary to discuss seriatim, because it is sufficient to say that such findings will not be reviewed where there is any evidence to support them, notwithstanding the court itself may reach a different conclusion from the evidence. We haye examined each of these findings, and hold that there is sufficient evidence to support them; hence we overrule these assignments. See Corrigan v. Goss, 160 S. W. 652; Sanders v. Rawlings, 77 S. W. 44; Thigpen v. Russell, 55 Tex. Civ. App. 211, 118 S. W. 1080; Morrow v. Gonoway, 157 S. W. 430; Nunn v. Padgitt Bros., 161 S. W. 921.

[7] We think the action of the court in allowing appellants credit for the items of cotton picking and rent was just and proper. We therefore overrule appellees’ cross-assignments challenging the correctness of the judgment on this account.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.

«fospFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes