Abeel v. Levy

• Decision Date: 10 April 1901
• Citation: 61 S.W. 937
• Parties: ABEEL v. LEVY et al.
• Court: Texas Court of Appeals

61 S.W. 937

ABEEL v. LEVY et al.

Court of Civil Appeals of Texas.

April 10, 1901.

Appeal from Navarro county court; J. F. Stout, Judge.

Action by Alfred Abeel against I. P. Levy and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Boynton & Boynton and Ballew & Ballew, for appellant. Simkins & Mays, for appellees.

KEY, J.

Appellant, as plaintiff, sued I. P. Levy and N. J. Garitty, as defendants, to recover 136 pair of shoes, alleged to be the property of appellant, and then in possession of the defendant N. J. Garitty. The trial resulted in a judgment against the plaintiff, and he has appealed. The defendant Garitty bought the shoes from the defendant Levy. Levy obtained possession of them under a written contract, which, in effect, stipulated that title to the property should remain in the plaintiff until it was paid for. The instrument referred to in effect reserved title in the plaintiff, and was not, upon its face, a mortgage; and whether or not the plaintiff had, by his conduct, vested title to the property in Levy, and waived his right to repossess it, was a question of fact to be determined by consideration of all the testimony bearing thereon. We sustain the fifth assignment of error, and reverse the judgment, because the court excluded material evidence, which should have been admitted upon the question referred to. On the other issue in the case—that of mutual mistake in embodying certain stipulations in the contract—we think the court erred, as pointed out in the fourth assignment, in permitting the defendants to testify that the duplicate contract delivered to the defendant Levy did not contain the stipulations referred to. The duplicate itself was traced to the possession of one of the defendants' attorneys, and it was not shown that he had made search for and could not produce it. In fact, he did not testify at all, and, for aught that appears in the record, may still have the instrument in his possession. There was no sufficient predicate for the introduction of secondary evidence. Dunn v. Choate, 4 Tex. 17; Vandergriff v. Piercy, 59 Tex. 371. Except as shown by this opinion, we overrule all the assignments raising other questions. For the errors pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.