Biggs & Co. v. Caldwell

• Decision Date: 11 March 1938
• Docket Number: No. 13718.,13718.
• Citation: 115 S.W.2d 461
• Parties: BIGGS & CO. v. CALDWELL et al.
• Court: Texas Court of Appeals

115 S.W.2d 461

BIGGS & CO. v. CALDWELL et al.

No. 13718.

Court of Civil Appeals of Texas. Fort Worth.

March 11, 1938.

Rehearing Denied April 15, 1938.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Suit by Mrs. Beatrice P. Caldwell and husband against Biggs & Company to recover $600 held by the First National Bank in escrow. From the judgment, the defendant appeals.

Affirmed.

Carrigan, Hoffman & Carrigan and James E. Prothro, all of Wichita Falls, for appellant.

T. R. Boone, of Wichita Falls, for appellees.

DUNKLIN, Chief Justice.

W. C. Cole and Claude L. Young, doing business under the partnership name American Dry Cleaners, in a building in the city of Wichita Falls, which they leased from the owner, Wyatt F. Parrish, having defaulted in payment of rents, a written agreement was entered into by and between W. C. Cole, the then sole owner of the partnership assets, and four creditors of the firm, namely, the First National Bank of Wichita Falls, first party, Biggs & Company, a private corporation, second party, Mrs. Beatrice Caldwell, wife of W. H. Caldwell, third party, and the partnership firm of Valet Cleaning Company, composed of Roy Childress and W. J. House, fourth party, by the terms of which all the furniture, fixtures, and other equipment belonging to the lessees, situated in the building, were sold to the fourth party, and $600 of the purchase price was placed in escrow with the first party bank, with agreement of all parties that same would be held to await a determination of the question of priority of liens claimed by the second and third parties, respectively, and paid over in accordance with the rights that might be established in accordance with the final determination of the priority of those claims.

That agreement embodied a recitation that each of those parties were claiming to be creditors of the lessees, secured by liens on said furniture, fixtures, and other equipments situated in the rented premises, the nature and character of which liens were noted and hereinafter referred to.

The owner of the building leased the same to the American Dry Cleaners, by contract in writing, executed by both parties, for a period of ten years, beginning the 1st of July, 1930, and ending December 31, 1939, for a total consideration of $21,000, payable in monthly installments of $175 each, in advance, on the 1st day of each month. The lease stipulated: "The lessor shall have a lien as security for the rent aforesaid, upon all the goods, wares, chattels, implements, fixtures, tools and other personal property which are or may be put on the demised premises."

The lessees paid all the rents accruing up to May 1, 1931, and $34.21 on the installment due on that date, leaving a balance of $140.79 unpaid on that date.

On July 25, 1931, W. F. Parrish, the lessor, sold and assigned to Mrs. Beatrice Caldwell said lease and the obligation of the lessees to pay the rents therefor, together with the mortgage given to secure same, with the recital that the mortgage had been filed in the chattel mortgage records of Wichita County. But the record shows that the lease with the mortgage clause therein was filed in the chattel mortgage records of Wichita county, on August 21, 1931, which was subsequent to the date of the assignment. Prior to that assignment, the lessor had reduced the rentals from $175 to $125 per month.

The rents accruing for the period beginning with the unpaid balance of $140.79, due May 1, 1931, up to and including January 1, 1932, aggregated $1,240.79. During the year 1931, the lessees paid the sum of $415.50. In the absence of any application by the parties to the contrary, the trial court applied that payment to the oldest items accruing, leaving an unpaid balance due for the year 1931 of $700.29.

On December 5, 1932, the lessees executed their promissory note in writing, payable to Mrs. Beatrice Caldwell, for the sum of $1.687.58, due 90 days after date, with this stipulation therein: "This note is given for the purpose of establishing the amount due, and is cumulative, and is secured by landlord's lien, and is secured by mortgage lien heretofore filed with the County Clerk of Wichita County, Texas, said mortgage lien being upon all personal property, effects, fixtures, machinery, furniture, notes and accounts, and all appurtenances referred to in said recorded mortgage in favor of payee herein, being Mortgage No. 65314, which mortgage is hereby, by reference, made a part hereof for all purposes."

For the purpose of fixing a statutory landlord's lien in compliance with the provisions of article 5238, Vernon's Ann.Tex. Civ.St., W. H. Caldwell, as agent and attorney for Mrs. Beatrice Caldwell, filed with the county clerk of Wichita county his affidavit embodying the requirements of that article. That affidavit was dated May 25, 1936.

On February 17, 1931, the lessees executed a chattel mortgage to Biggs & Company on certain of the machinery, tools, and equipments in the rented premises, to secure payment of $688.24, payable in seven installment notes, four of which were in the sum of $25 each, the first payable April...