Anchor v. Gose

• Decision Date: 12 May 1928
• Docket Number: (No. 11983.)
• Citation: 8 S.W.2d 690
• Parties: ANCHOR v. GOSE.
• Court: Texas Court of Appeals

8 S.W.2d 690

ANCHOR v. GOSE.

(No. 11983.)

Court of Civil Appeals of Texas. Fort Worth.

May 12, 1928.

Appeal from Wichita County Court; C. M. McFarland, Judge.

Action by Lila C. Anchor against S. M. Gose. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

W. P. Smith, of Wichita Falls, for appellant.

J. S. Dickey and Taylor, Muse & Taylor, all of Wichita Falls, for appellee.

CONNER, C. J.

This suit was instituted by Lila C. Anchor against S. M. Gose, to recover two diamond rings, or, in the alternative, for their value, which had been pledged and delivered to said Gose to secure the repayment of $100, which Gose had loaned to Miss Anchor on January 27, 1926. The note given by Miss Anchor for the repayment of the loan was made payable six months after its date, bore interest at the rate of 10 per cent. per annum, and was secured by "two diamond rings, lady's mounting, yellow gold," pledged and delivered to Mr. Gose at the time. The note also provided that, in default of payment, "the legal owners of the same" might "sell, assign, or deliver said security, either at public or private sale, after giving notice of such sale, and to apply the net proceeds of said sale to the payment of whatever may then be due."

The plaintiff alleged and the undisputed evidence shows that the note was credited with a payment of $50 on July 27, 1926, and a further payment of $25 in the following August; that, no further payments having been made, the defendant, Gose, delivered the diamonds to Judge Dickey, his attorney, and instructed him "to get my money out of them." Pursuant to such instruction, Judge Dickey prepared and posted in several public places notices of the sale, and also mailed a notice addressed to the plaintiff at Wichita Falls. Upon the appointed day, Judge Dickey "in the lobby of the Wichita State Bank" sold the diamond rings to a Mr. Jones for $35, there being no higher bidder. Jones was bidding for the defendant, Gose, having been appointed to so do. No money passed, but the note was credited with the $35 bid, and Jones immediately redelivered the diamond rings to Judge Dickey, who later sold them to a Mr. Mills for $35, who was not offered as a witness, and the money given to Mr. Gose.

At the conclusion of the testimony, the court peremptorily instructed the jury that had been impaneled to return a verdict for the defendant, which having been done, judgment for the defendant was entered, and the plaintiff has duly appealed and assigns error to the action of the court in giving the peremptory instruction.

In determining the propriety of the court's action in giving the peremptory instruction brought to our attention, we can only consider the evidence tending to support the material allegations of the appellant's petition, wholly disregarding that which is opposed to it or contradictory in its nature. See Austin v. Cochran (Tex. Com. App.) 2 S. W.(2d) 831; First Nat. Bank v. Rush (Tex. Com. App.) 210 S. W. 521; Hibbs v. Bank (Tex. Civ. App.) 293 S. W. 350; Magill v. McDonald (Tex. Civ. App.) 293 S. W. 349. And if such evidence, when so considered, is of any probative force, the giving of the peremptory instruction constitutes such error as requires a reversal of the judgment. See Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

With these rules as guides, we have carefully reviewed and considered the evidence brought before us in a duly approved statement of facts, and have concluded that the court erred in giving the peremptory charge complained of, and that because of this the judgment must be reversed. To hold otherwise would, we think, deprive appellant of the right of a trial by jury, which is guaranteed to her by constitutional and statutory provisions.

In addition to the undisputed facts stated, the plaintiff testified, among other things, that the rings pledged were worth $300; that at the time she made the last payment of $25 she said to defendant, Gose, that she would "pay the rest as soon as" she could; that he "nodded his head in assent"; that about the middle of the following April she went in to pay the balance due upon the note, and then for the first time learned that the rings had been sold; that her post office address "was never at Wichita Falls"; that she lived in the country, and her address was "R. F. D. No. 3, Wichita Falls"; that she received no letter giving notice of the proposed sale, saw none of the posted notices, heard no one speak of it, or otherwise had any knowledge that her rings were to be sold; that, if she had received notice, she could and would have borrowed the money and made immediate payment of the balance due on her note; that at the time she borrowed the money Mr. Gose was very courteous, and among other things said, "If you cannot pay the amount of the note when due, I do not mind extending small loans," and she felt easy in her mind about the note.

Assuming the testimony in behalf of appellant as true for the purposes of our conclusions, as it is our duty to do, it is evident that the rings were sold for a grossly inadequate sum, and while a sale regularly and lawfully made will not be set aside for mere inadequacy of price, it is very generally held that such inadequacy, coupled with even slight circumstances of unfairness or irregularity, will be sufficient to authorize the setting aside of the sale. See Gandy v. Cameron State Bank (Tex. Civ. App.) 2 S.W.(2d) 971.

Appellee's relation to appellant and her property was analogous to that of a trustee. In treating the subject, the Court of Civil Appeals, in the case of Uncle Sam's Loan Office v. Emery, 49 Tex. Civ. App. 236, 107 S. W. 1155, had this to say:

"The exercise of the power of sale is not solely for the benefit of the pledgor, but in executing such power he becomes the trustee of the pledgor. The pawnbroker has a special property in the thing pledged, as well as a trustee to sell. The property is pledged expressly to secure his claim. At the public sale required to be under the statute, he has an interest that the property in his possession and pledged for the debt should bring the amount of his claim, as this may be the only fund for the discharge of the debt. But as trustee he is required to do more than to try only to pay his own debt merely. The sale...