Bergen v. Producers' Marble Co.

• Decision Date: 01 November 1888
• Citation: 11 S.W. 1027
• Parties: BERGEN <I>v.</I> PRODUCERS' MARBLE CO.
• Court: Texas Supreme Court

11 S.W. 1027

BERGENv.

PRODUCERS' MARBLE CO.

Supreme Court of Texas.

November Term, 1888.¹

Appeal from district court, Johnson county.

Crane & Ramsey and J. W. Brown, for appellant. Davis & Plummer, for appellee.

WALKER, J.

Both parties claimed the stock of marble in controversy under one J. T. Smith. It is shown that in 1882 and 1883 J T. Smith and his brother, Cy T. Smith, were in the tombstone business in the town of Cleburne. In October, 1883, Cy T. disposed of his interest in the business, and moved to Jasper county, Mo. J. T. continued, and on September 22, 1884, he left for the alleged purpose of having a surgical operation performed, and with no definite time for his return. He left one or more persons in charge of the business, which was kept open until November 1st. September 29th he executed a promissory note for $1,400, due 60 days thereafter, to Cy T. Smith, and also executed a chattel mortgage upon his stock at Cleburne, Tex. The mortgage was deposited with the county clerk of Johnson county, Tex., October 2, 1884. December 2, 1884, the note maturing, a suit was filed in the district court by Cy T. v. J. T. Smith, on the note and to foreclose the mortgage. Service was accepted by ____ Boyd, agent in fact of both the parties, but with authority to accept service, waive time, etc. On same day judgment was rendered upon the note, foreclosing the mortgage; also ordering execution to issue forthwith. Execution issued at once, and the stock of marble was sold under the decree of foreclosure, and was bought by the attorney for plaintiff in execution for his client. Notice was given at the sale that the Producers' Marble Company would contest validity of the sale. Bergen, the appellant, and who at once bought the stock, was present at the sale, and had notice that the creditors would attack the proceedings and sale as fraudulent. The plaintiff in this suit caused an attachment to be levied upon the stock, and January 16, 1885, Bergen filed affidavit of ownership and claim-bond to try the right of property. Judgment was against Bergen, and he appeals.

The first assignment of error questions the action of the court in overruling the objections of defendant, Bergen, to the 7th interrogatory and answer thereto of the witness Church. The question objected to as leading is: "State whether J. T. Smith left Cleburne in September, 1884, and who did he leave in charge of his business, to run it until he returned? Answer. He left Cleburne on or about September 22, 1884, and left me in charge of his business." By "leading questions" are meant "questions which suggest to the witness the answer desired." Questions are also objectionable "which embody a material fact, and admit of an answer by a simple affirmation or negative." 1 Greenl.Ev § 434. In the application of the rule much is left to the discretion of the trial judge. In this case the witness had been in the employ of J. T. Smith for years. Smith's departure in September, 1884, was notorious. Under these circumstances, it was not error to allow the question, as leading the witness at once to the facts desired, viz., that he had been left in charge of the business, and the precise day of Smith's departure. Neither of these facts are implied or suggested in the question. The court did not err in refusing to exclude the testimony.

The second assignment relates to the declarations admitted of J. T. Smith's, in 1884, before he left Cleburne, and when at his marble-yard, made to the witness Church, that he (Smith) "had paid Cy T. Smith for the stock, part in cash and part in notes." The rule as to admissions of assignors against assignees of a personal chattel is stated in section 190, 1 Greenl. Ev. "In such case he [the assignee] is bound by the previous admissions of the assignor in disparagement of his own apparent title. But this is true only where there is an identity of interest between the assignor and assignee; and such identity is deemed to exist not only where the latter is expressly the mere agent and representative of the former, but also where the assignee has acquired a title with actual notice of the true state of that of the assignor as qualified by the admissions in question." Had J. T. Smith been examined as a witness, these...