Bryan & Emery v. Frick-Reid Supply Co.

• Decision Date: 07 November 1928
• Docket Number: (No. 3098.)
• Citation: 10 S.W.2d 1023
• Parties: BRYAN & EMERY, Inc., v. FRICK-REID SUPPLY CO.
• Court: Texas Court of Appeals

10 S.W.2d 1023

BRYAN & EMERY, Inc., v. FRICK-REID SUPPLY CO.

(No. 3098.)

Court of Civil Appeals of Texas. Amarillo.

November 7, 1928.

Appeal from District Court, Cottle County; Isaac O. Newton, Judge.

Suit by the Frick-Reid Supply Company against Bryan & Emery, Inc., and another, wherein J. F. Dye intervened. Judgment for plaintiff against defendants and in favor of intervener, and defendant named appeals. Affirmed.

G. C. Spillers, of Tulsa, Okl., Wm. B. Combest, of Paducah, and Carrigan, Britain, Morgan & King, of Amarillo, for appellant.

Bell & Bell, of Paducah, and Fischer & Fischer, of Wichita Falls, for appellee.

RANDOLPH, J.

Appellee, as plaintiff, brought this suit against the appellant and J. C. Pattison, as defendants, to recover the sum of $9,707.20, balance alleged to be due and owing upon certain oil well casing and material sold to said Pattison and by said Pattison sold to Bryan & Emery, Inc., and which last-named defendant is alleged to have converted said pipe and material to its own use and benefit. J. F. Dye filed his petition of intervention in the cause, claiming said pipe and material by reason of purchase thereof as an innocent purchaser. Upon trial before a jury and on the verdict of the jury, the court rendered judgment for the plaintiff against the defendants, Bryan & Emery, Inc., and Pattison, and in favor of intervener, Dye, and against the plaintiff on intervener's plea of innocent purchase. The defendant Bryan & Emery, Inc., has appealed from said judgment to this court.

In its first amended original petition, plaintiff alleges that it is a foreign corporation with a permit to do business in the state of Texas; that on October 30, 1926, the plaintiff and defendant Pattison entered into a verbal contract, by the terms of which contract plaintiff agreed to sell to said defendant Pattison, upon credit, the casing and material necessary for the drilling of a well for Pattison, which he was about to commence in King county, Tex., said casing to be delivered to defendant Pattison as he called for it; further alleging that defendant Pattison agreed to pay for same within 60 days after delivery thereof; that, in pursuance of said contract, the plaintiff delivered to Pattison, for the purpose aforesaid, the casing and supplies thereinafter set out, specifically showing the items of casing and supply and the dates of the sales and delivery thereof, the amount said defendant agreed to pay plaintiff therefor aggregating the sum of $24,422.87; that, after the plaintiff had delivered the casing and material above set out, Pattison executed and delivered to the plaintiff his two certain promissory notes in the sums, respectively, of $11,825.16 and $12,597.71, the aggregate of the two being the sum of $24,422.87; and also alleging that said notes evidenced the debt due the plaintiff for the purchase price of the above-described merchandise; that said notes were taken by the plaintiff as an extension of the time of payment of said debt and upon agreement of said Pattison that he would execute and deliver to the plaintiff a chattel mortgage upon all of said property to secure the payment of said debt, but that said defendant failed to execute and deliver said chattel mortgage, yet at all times he had agreed to execute same; that, when said notes became due, payment of the debt was extended by the defendant executing and delivering to the plaintiff renewal notes and describing such renewal notes; that defendant Pattison has failed and refused to execute and deliver said mortgage to the plaintiff, and that plaintiff is now entitled to the possession of said property and to foreclose its lien thereon; alleging that, within three months after the delivery of said merchandise by the plaintiff to Pattison, Pattison executed and delivered to the defendant Bryan & Emery, Inc., a bill of sale to all of said property; that said sale was not made in good faith for a valuable consideration and in the absence of knowledge of plaintiff's lien thereon, but was only a simulated sale and an attempt on the part of said Pattison and said Bryan & Emery, Inc., acting in concert and collusion, to make it appear that said property had been sold to a third person for a valuable consideration who was innocent of plaintiff's lien thereon. Plaintiff further alleges that said Bryan & Emery, Inc., did not pay Pattison anything more than a nominal consideration for said property, and therefore it is not a bona fide purchase of same without notice of plaintiff's lien thereon; alleging that defendant Bryan & Emery, Inc., had full knowledge of all the terms of the trade, and that such knowledge, independent of any actual knowledge, was sufficient to put said defendant upon inquiry as to whether the purchase price had been paid, and they were therefore charged with notice that plaintiff had a lien on same by virtue of the Constitution of the state of Texas. Plaintiff further alleges the claim of intervener as an innocent purchaser, and pleads, in the alternative, that, if intervener should be held to be an innocent purchaser of said property, then that Bryan & Emery, Inc., had sold and converted certain portions of said property, setting out the various items alleged to have been converted, aggregating in value $9,707.20.

Plaintiff then prays for judgment against defendants Pattison and Bryan & Emery, Inc., for the last-named sum, for the recovery of the first-described property, which has not been disposed of, and for general relief.

The defendant Bryan & Emery, Inc., filed its answer, consisting of a general exception, special exceptions, general denial, and special defenses not necessary to be set out here. Plaintiff then filed reply pleadings which are not necessary to be set out here.

The appellant, Bryan & Emery, Inc., under its first proposition, urges as error on the part of the trial court the refusing by that court to set aside the findings of the jury in answer to special issue No. 1, which is alleged to be erroneous for the reason that there was no evidence adduced on the trial of this cause that sustains the affirmative finding of the jury, wherein they found that Bryan & Emery, Inc., at the time it purchased the material in question, had notice that Pattison had not paid the appellee the purchase price of same. Issue No. 1, referred to, is as follows:

"At the time the defendant Bryan & Emery, Inc., took the bill of sale from the defendant J. L. Pattison, for the oil well casing and material in controversy, did any of its officers have any notice that the defendant Pattison had not paid the Frick-Reid Supply Co., the purchase price of same? Answer Yes or No" — which the jury answered "Yes."

The question whether or not there was any evidence to sustain the jury's finding in answer to said issue is disposed of by a consideration of the recitals of the statement of facts as follows: Defendant Pattison first testified that, in the trade he made with Bryan & Emery, Inc., that company was to pay the debts down in King county outstanding against him, for the purpose of keeping liens off the property; that he never said anything to them about paying Frick-Reid Supply Company for the pipes and material; that they did not know that he got the casing from the Frick-Reid Supply Company and they did not know it had not been paid for; that they did not ask him anything about the pipe and material and did not ask him where he got it. Quoting from him:

"I simply told them I had made settlement for the pipe with my note. They did not ask me who I gave the note to. I just told them I had made settlement for it by note. * * *"

E. D. Johnson, credit manager for the Frick-Reid Supply Company, testified that Pattison told him that he had made an agreement with Bryan & Emery, Inc., to complete the well, but did not tell him what the agreement was, and he went to Bryan & Emery, Inc.'s, office and talked with Mr. Bryan, its president. Mr. Johnson further testified as follows:

"I said to him what kind of a deal have you got with Mr. Pattison and he replied that Mr. Pattison gave them a bill of sale and I said `a bill of sale?' and he says `yes,' and I says `to what?' and he says `to the pipe down there' and I said `well, I am going to start suit right away to get our pipe' — Our conversation about the pipe was, `I said you knew he had never paid us for that pipe, and knew that we had a lien on that pipe' and I says, `What are you going to do about it?' and he said `You hadn't filed any lien' and I said `Well, I will start suit right away, you knew that pipe belonged to us', and he said `there is no use of you and I quarreling about this, we are going to finish the well, and there is enough money — purchase orders, to take care of the drilling of the same,' so I — and in the conversation, he told me he had a bill of sale for the pipe, that was to guarantee him against any additional cost of drilling the well — the consideration was that. He said there was sufficient purchase orders to finish the well, and would be some left over. He further stated, if we get a well, we will pay for the pipe, and if we don't, we will pull the pipe, and you will get the pipe back. When I stated to him that Mr. Pattison had not paid us for the pipe, and that we had a lien on it, he stated that we would get the pipe back. I do not recall just the exact words he used, but that effect. When I went over there to investigate and find out what sort of deal he had with Mr. Pattison, he showed me the bill of sale, and made the statements I...