Bowen v. Lansing Wagon Works

• Decision Date: 13 January 1898
• Citation: 43 S.W. 872
• Parties: BOWEN et al. v. LANSING WAGON WORKS.
• Court: Texas Supreme Court

43 S.W. 872

BOWEN et al. v. LANSING WAGON WORKS.

Supreme Court of Texas.

January 13, 1898.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by Lansing Wagon Works against R. S. Bowen and others. Certified questions.

Sims & Snodgrass, for appellants. J. B. Scarborough, for appellee.

DENMAN, J.

In this cause the court of civil appeals of the Third supreme judicial district has certified to us the following questions and explanatory statement: "This suit was brought October 6, 1896, by the Lansing Wagon Works, a corporation doing business in Lansing, Mich., against appellants, R. S. Bowen and B. H. Pittman, on certain promissory notes executed by Bowen to the company, and to foreclose a lien on certain wagons. There was an agreement between plaintiff and defendant Bowen, as shown by letter of the plaintiff to defendant dated February 22, 1896, indorsed by defendant, March 2, 1896, by which the latter accepted the terms of the contract that the company should ship to defendant, at Waco, Tex., wagons, and that all wagons so shipped were to remain the property of plaintiff until he (Bowen) settled for them, as follows: Upon the arrival of the goods, defendant Bowen was to give plaintiff his note for the purchase price of the wagons, and when he sold any of the wagons he was to forward to plaintiff his customers' notes, to be held by it as collateral security for the purchase price. The notes sued on were given by defendant for wagons shipped to him by plaintiff pursuant to the foregoing agreement, and the wagons upon which plaintiff sought to foreclose the lien were wagons shipped under the agreement. Not having been sold by Bowen, these wagons had not been settled for, as provided in the agreement, and they were consequently the property of the plaintiff. It was agreed that the amount due at the time of trial on notes of defendant Bowen to plaintiff was $984, principal and interest, and $98.40 attorney's fees, for which the suit was brought. The contract between plaintiff and defendant was never authenticated, deposited with the clerk, or registered as a chattel mortgage. Bowen was engaged in the business of buying and selling, by retail, wagons, buggies, surreys, phaetons, harness, cultivators, plows, and a general implement business in the city of Waco, McLennan county, and was so engaged when he procured the wagons in question in this suit; and it was understood between him and plaintiff, at the time the contract between them was made, and at the time he got possession of the wagons, that they were to be by defendant Bowen daily exposed for sale in the said business at retail, and to sell them in the usual course of business; and he did keep them in his stock, and daily exposed and offered them for sale by retail in Waco, from the time he received them until they were turned over to the trustee under the trust deed hereinafter mentioned. The wagons involved in this suit were wagons delivered to Bowen under his contract with plaintiff, and these he exposed for sale, as stated, with other stock in trade. Neither the trustees, nor the beneficiaries under the trust deed, had any notice of plaintiff's rights under the contract until this suit was brought. On the 14th day of September, 1896, Bowen made, executed, and delivered a certain deed of trust to Perry Jennings, as trustee, of McLennan county, conveying all the property in question in this suit upon which plaintiff seeks to establish and foreclose a lien, as well as other property, for the purpose of securing certain creditors named in class A in the payment of their pre-existing debts due and owing them by Bowen, and also in class B, the creditors in class A to be preferred to those named in class B; providing that the trustee should sell the property and pay the creditors named, and stipulating that when the debts were paid, if there was sufficient of the property to do so, and all expenses of executing the trust, the residue of the same, or its proceeds, should be delivered to him (Bowen). Perry Jennings immediately, on the same day, took possession of the property mentioned in the instrument, and proceeded to execute the same immediately, and the creditors beneficiary, as named in class A, except one, before suit, duly accepted the benefits of the deed, after which Jennings refused longer to act as trustee, and resigned. Whereupon the county judge of McLennan county, as provided in the deed, duly appointed B. H. Pittman, of McLennan county, trustee to execute the trust, as substitute trustee; and he thereupon immediately took possession of the goods mortgaged by the trust deed, and proceeded to execute and carry out its provisions. On the day of its execution the deed of trust was deposited with the county clerk, and filed and registered in the office of the county clerk of McLennan county, Tex., as directed by law, in case of filing, depositing, and registering chattel mortgages. It was proved that the goods mortgaged by the deed of trust were not of value more than sufficient to pay the expenses necessary to be expended in carrying out the trust, and to pay the creditors who had accepted its terms, as named in class A. The wagons mentioned in plaintiff's petition were, at the time the suit was filed, in the possession of the trustee, Pittman, in Waco, and were by him, by consent of plaintiff, sold, and the proceeds of the sale, $426, were held by him, subject to the decision in this case. The court below, trying the case without a jury, found the facts substantially as stated above, and decided...