Burns v. True

• Decision Date: 29 November 1893
• Citation: 24 S.W. 338
• Court: Texas Court of Appeals
• Parties: BURNS et al. v. TRUE.

24 S.W. 338

BURNS et al. v. TRUE.

Court of Civil Appeals of Texas.

November 29, 1893.

Appeal from district court, Potter county; B. M. Baker, Judge.

Action by E. F. True against Burns, Walker & Co. for alleged breach of contract. There was a judgment for plaintiff, and defendants appeal. Reversed.

The original petition was filed February 25, 1890. On the 10th day of September, 1891, appellee filed an amended original petition, alleging, in substance, that on September 6, 1889, defendants and plaintiff owned and possessed the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand of horses, numbering about 150 head, defendants owning an undivided one-third, and plaintiff an undivided two-thirds, interest therein; that plaintiff's interest was worth $2,800, and the defendants' $1,400; that defendants also owned another stock of horses, branded T, numbering about 25 head, worth $288; that on said date defendants agreed with and promised plaintiff that if he would execute to them three notes for $562.96 each, signed by himself and one James Wyness, payable, respectively, in 10, 12, and 15 months, bearing interest at 10 per cent. from date, to be secured by a deed of trust on plaintiff's two-third interest in said NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE horses, they would transfer to him the said T brand of horses, and on payment of said notes by plaintiff to also transfer to him their said one-third interest in said NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE horses; that on said 6th of September, 1889, plaintiff and said Wyness executed and delivered to defendants said three notes, and plaintiff at same time executed to W. W. Bynum, trustee, said deed of trust to secure the payment of said notes, and defendants executed to plaintiff a bill of sale for said T brand of horses, according to agreement; that on February 24, 1890, before any of said notes were due, plaintiff caused to be tendered to defendants the sum of $1,767.67, the principal and interest on same, and offered to take them up, and that defendants refused to accept it; that again, on March 1, 1890, plaintiff called on defendants to pay off the notes, and defendant Smith informed him that said notes and deed of trust had been transferred to E. T. Bayse; that on March 3, 1890, Bayse indorsed said notes and deed of trust to B. H. Plemons, and on same day plaintiff paid them off to said Plemons; that on December 7, 1889, defendants transferred the title and possession of said one-third interest in said NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand of horses to said Bayse; that from February 24, 1890, to March 3, 1890, plaintiff was ready and willing to pay said sum of $1,767.67 in full satisfaction of said notes. Plaintiff alleged compliance on his part with the contract, and refusal on defendants' part to transfer to him the title and possession of said third interest in the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand of horses, by reason of which he was damaged $1,400, the market value of such interest in said horses, and asked for judgment for that amount. The appellants (defendants below) presented, besides the various issues of the law upon the pleadings, three issues by their first amended original answer, filed September 10, 1891, to wit: (1) A general denial. (2) A purchase by defendants, August 28, 1889, of James Wyness, of the interest in each brand of said horses alleged by plaintiff as belonging to defendants, the consideration being a credit of $600 on an indebtedness of said Wyness to defendants, which left him still owing them about $625; that before this on August 5, 1889, defendants, as a protection to themselves, bought Wyness' interest in said horses at a trustee's sale for $325, which sum so paid they held as an additional charge against Wyness; that on September 6, 1889, defendants agreed with plaintiff, if he would secure the entire indebtedness of Wyness to defendants, they would regard the sale of Wyness to them as security for the $600, and, if plaintiff had to pay the debt, that defendants would deliver over to him the said security; that Wyness was the principal, and plaintiff only security, on the notes described by plaintiff, which were given for the said Wyness' indebtedness to defendants; that on December 7, 1889, E. T. Bayse bought all of plaintiff's interest in the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE brand of horses at execution sale, and defendants then sold to Bayse said three notes held by them against Wyness and plaintiff, taking Bayse's individual note for same; that at this time defendant Smith, who was acting for defendants' firm, had forgotten his agreement with plaintiff; that plaintiff knew of the trade between defendants and Bayse for a long while prior to its final consummation, and made no objection to same; that plaintiff was present on March 3, 1890, when Bayse paid off his notes to defendants, and took from them the said notes against Wyness and plaintiff, and made no objection to defendants' action; that by objecting he could have protected himself from damage, and that now he is estopped from claiming any damage against defendants. (3) Specially denying that plaintiff has in good faith paid off said notes.

The court charged, inter alia, as follows: "You are instructed that a bill of sale, although absolute on its face, if intended to operate as a mortgage or other security for debt at the time of its execution, will be held a mortgage only, and, upon payment of the indebtedness it is intended to secure payment of, it ceases to have life and force. You are instructed that choses in action are not subject to execution, and that no title thereto can pass by execution sale, and that an unsatisfied mortgage upon personal property is a chose in action."

Plaintiff, True, testified that on October 9, 1890, he gave Scott & McReynolds a bill of sale to his two-thirds interest in the NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE horses; that an execution was also levied on the entire interest of plaintiff and Wyness in said horses, and they were sold under said execution, about December 7, 1889, to E. T. Bayse; that said execution issued on a judgment in justice court at Amarillo, in a case of L. B. Brown vs. True and Wyness; that the bill of sale to Scott & McReynolds was intended as a mortgage to secure them in a debt plaintiff owed them of about $500; that the sheriff's sale under execution, December 7, 1889, was never regarded as valid, and was so treated by Bayse and defendant Smith. W. B. Plemons testified, for plaintiff, that witness bought for his son, ...