Bonneville v. Wehrman

• Citation: 106 S.W.2d 834
• Decision Date: 20 May 1937
• Docket Number: No. 1883.,1883.
• Parties: BONNEVILLE v. WEHRMAN et al.
• Court: Texas Court of Appeals

106 S.W.2d 834

BONNEVILLE v. WEHRMAN et al.

No. 1883.

Court of Civil Appeals of Texas. Waco.

May 20, 1937.

Rehearing Denied June 24, 1937.

Error from District Court, Brazos County; W. C. Davis, Judge.

Suit between M. Bonneville and H. F. Wehrman and others. To review a judgment for the Lawrence Grocery Company, Bonneville brings error.

Affirmed.

J. G. Minkert, of Bryan, and Spivey & Davidson, of Waco, for plaintiff in error.

Armstrong & Armstrong and Henderson & Hoyle, all of Bryan, for defendants in error.

ALEXANDER, Justice.

This suit involves a contest as to the priority of liens between Lawrence Grocery Company a chattel mortgage on the gage on the store fixtures of one Charles Kosarek, and M. Bonneville, who claimed a superior landlord's lien thereon. A trial before the court, without a jury, resulted in a judgment favorable to Lawrence Grocery Company. Bonneville appealed.

The evidence disclosed that Kosarek executed and delivered to Lawrence Grocery Company, who held a chattel mortstore fixtures in question on April 28, 1933, to secure the payment of a debt in the sum of $500. This mortgage appears to have been promptly registered. Lawrence Grocery Company in a prior suit sued Kosarek and recovered a judgment for its debt with foreclosure of its chattel mortgage lien, but did not make Bonneville a party to that suit. Bonneville here claims that on April 15, 1933, he rented a store building to Kosarek for a period of one year beginning April 15, 1933, and ending April 15, 1934, at $100 per month; that said fixtures had been placed in the store building prior to the execution of the mortgage to Lawrence Grocery Company; that Kosarek failed to pay the rent, and as a consequence he (Bonneville) has a prior lien thereon. The evidence disclosed that Bonneville in a prior suit had sued Kosarek on his rental contract for unpaid rents and had recovered a judgment therefor with foreclosure of a landlord's lien on the fixtures in question, and that said fixtures had been sold under said foreclosure proceedings and bought in by Bonneville and by him sold to a third party. Lawrence Grocery Company was not a party to that suit. Lawrence Grocery Company here contends that Bonneville, by the above procedure, converted the fixtures in question to his own use and benefit.

After carefully considering the record, we have reached the conclusion that the evidence was insufficient to show a prior lien in favor of Bonneville, the landlord. There was no dispute about Lawrence Grocery Company having obtained a chattel mortgage on the fixtures in question on April 28, 1933. That lien must prevail unless Bonneville established a prior landlord's lien. It was agreed that Bonneville rented the premises to Kosarek on April 15, 1933. This rental period was apparently to begin on May 1st of the same year. It was also agreed that the fixtures had been moved into the building prior to the execution of the chattel mortgage to Lawrence Grocery Company. If there was any rent due or to become due under said rental contract at the time the chattel mortgage was given, then the landlord had a prior lien on the fixtures in the building. 27 Tex.Jur. 135, 165, 167. It appears, however, that Bonneville failed to prove that his rental contract with Kosarek was for any...