Barlow v. Gaines

• Decision Date: 16 December 1881
• Docket Number: Case No. 4257.
• Citation: 55 Tex. 485
• Court: Texas Supreme Court
• Parties: MCCREARY & BARLOW v. R. T. GAINES.

55 Tex. 485

MCCREARY & BARLOW

v.R. T. GAINES.

Case No. 4257.

Supreme Court of Texas.

Dec. 16, 1881.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

The opinion states the case.

Mabry & Carter, for appellants.

I. A factor cannot pledge the goods of his principal generally, but if the principal arms him with such indicia of property as enable him to deal with it as his own, the courts will sustain such a pledge in favor of the pledgee, who has been deceived by the conduct of the owner and his agent. See 2 Kent, p. 815, note 2; Boyson v. Coles, 6 Maule & Selw., 14; note 5, sec. 113, Story on Agency; Pultney v. Kyner, 3 Esp., 182; Pickering v. Busk, 15 East, 44; 1 Bell's Com., sec. 412; Paley on Agency, by Lloyd (4th ed.), pp. 219-233; sec. 325, Story on Bailments, and notes 3 and 4; sec. 328, and authorities.

John D. Templeton, for appellee.

STAYTON, ASSOCIATE JUSTICE.

This suit was brought by the appellee against the appellants to recover one piano and three organs, or their value.

Plaintiff alleged that he had placed the property sued for with Henry Miller, for sale upon commission, and that he was advised that Miller had pledged the same to appellants to secure the payment of a sum of money borrowed by Miller from the appellants, for his own use; and he further alleged that at the same time, Miller, for the same purpose, pledged to appellants property of his own of a like kind as that sued for, which was of value sufficient to fully satisfy the debt due from Miller to appellants.

He further alleged, upon information, that the sum borrowed from appellants was $600, and that the property of Miller pledged therefor was of the value of $2,715; and prayed in the event the property of himself was in any manner found liable for the debt due from Miller to appellants, that the property owned by Miller be first subjected to the payment of that debt.

The appellants pleaded a general denial, and that they purchased the property sued for in ignorance of the fact that the appellee was the owner thereof, from Miller, for a valuable consideration paid, believing Miller to be the owner thereof. They did not allege the pledge nor set out the loan of money.

After the appellants had fully answered, they filed what was denominated by them a “supplemental answer,” which consisted of special exceptions to the petitions of appellee, which, upon motion, was stricken out because not filed in due order of pleading. In this there was no error, for the appellants had already answered by a general demurrer and to the merits, and their special exceptions were not filed in due order of pleading; besides, it is not seen that the exceptions could have been sustained if they had been filed at the proper time.

The evidence showed that Miller was a dealer in musical instruments such as are sued for; that he lived and did business in Fort Worth, Texas; that he received from the appellee, who resided in Dallas, Texas, the piano and organs sued for, under an agreement to sell them for him upon commission at prices named, and that the property when received was by Miller put in his store at Fort Worth, among other goods of his own of a like character, for sale in the ordinary course of business. There was no controversy as to the ownership of the property being in the appellee at the time the same was delivered to Miller for sale.

The evidence further showed, that after Miller received the property he borrowed money from the appellants--how much does not appear; and that to secure the payment of the same, he pledged to them the property of the appellee, and also property of a like character which belonged to himself; the nature of the latter did not appear.

There was no evidence showing that the appellants knew that the property sued for belonged to the appellee, nor that they made inquiry in regard thereto. The money borrowed by Miller from the appellants had not been paid.

The cause was tried without a jury, and a judgment rendered for the appellee for the instruments or their value, the separate value of three of the instruments being determined, and the aggregate value of all, by the judgment.

The second assignment of error is that “the court erred in not rendering judgment for the appellants.”

The proposition under this assignment is, in effect, that Miller under the facts was authorized to pledge the property of his principal, and this is the main question in the case.

How far the court may have been influenced in rendering the judgment by the fact that no inquiry was made by the appellants as to the true ownership of the property, we are uninformed; but under the facts of the case, it was more incumbent upon them to do so than in ordinary cases; the pledge was not made in the ordinary course of business, but the pledgor was by the act of pledging withdrawing from the business a part of the property which he held for ordinary sale; how large a part does not appear, nor for how long it was expected to be withdrawn. Such, surely, was not in accordance with the ordinary custom of merchants, and was in itself perhaps a fact that should have aroused inquiry as to the status of the property and the relation of the pledgor thereto.

It would seem that it was incumbent upon the appellants to have shown upon the trial how much money they loaned to Miller, and the value of the property which belonged to Miller, which they hold to secure the payment of the same; for if that property was of value sufficient to pay their debts, they could have had, under no state of facts, either a legal or equitable right to hold the property of the appellee to pay that debt. These facts were within their knowledge, and proof in regard thereto would be expected of them under the pleadings; but notwithstanding one of the appellants was a witness in the case, he was silent in regard to these matters when he ought to have spoken.

Under such facts the court may have concluded that they had no rights, even if Miller had the power to pledge, which a court was called upon to protect, and we are not prepared to say that such a finding would have been erroneous.

If, however, the finding of the court was based upon the want of power in Miller to make the pledge (and we cannot say that this was not the basis of the finding), then it is necessary to consider that question.

We have no statute upon the subject now to be considered, unless article 2368 of the Revised Statutes has a bearing upon the subject. It in substance provides that no factor shall directly or indirectly acquire or purchase any interest in property consigned to him, unless by express license from the owner.

This act was most probably intended to prevent simulated sales, by and through which a factor might seek to acquire an interest in the...