C. H. Allyn & Co. v. Willis

• Decision Date: 27 November 1885
• Docket Number: Case No. 1759
• Citation: 65 Tex. 65
• Court: Texas Supreme Court
• Parties: C. H. ALLYN & CO. v. P. J. WILLIS & BRO.

65 Tex. 65

C. H. ALLYN & CO.

v.P. J. WILLIS & BRO.

Case No. 1759

Supreme Court of Texas.

Nov. 27, 1885.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

This was a case of trial of right of property, and grew out of the failure of E. M. Ewing, in 1881.

In August, 1881, P. J. Willis & Bro., of Galveston, sold E. M. Ewing, of Blooming Grove, a town in Navarro county, fifteen miles west of Corsicana, a bill of goods, to be delivered in September, and to be paid for in one, two, three and four months.

The goods were shipped to E. M. Ewing, Blooming Grove, via Corsicana, and reached Corsicana about September 6, 1881, and were taken from the depot and stored in the storehouse of A. Fox & Bro., in Corsicana. On the 8th of September, Fox & Bro. sued E. M. Ewing for $2,400.00, and caused an attachment to be levied on the goods in controversy then in the store in Corsicana. On the same day, C. H. Allyn & Co. sued Ewing for $2,000 and caused an attachment to be levied on the goods in controversy. Appellees, Willis & Bro., were notified of these proceedings, and on September 10, they sent a a man to investigate the matter. On arriving at Corsicana, it was found that the goods in controversy were in Corsicana, and that they had been attached by A. Fox & Bro., by C. H. Allyn & Co. and by Sullivan & Co. W. S. Simkins was then employed by Willis & Bro. to protect their claim. Appellees then sued Ewing for the purchase price of these goods, and caused attachments to be issued to Ellis and Navarro counties simultaneously, and levied on the goods subject to the attachment of Allyn & Co. The petition and affidavit for attachment both alleged that the debt sued for was due for property obtained under false pretenses. Appellees went to Ellis county with attachment, but found other creditors ahead of them. On the 13th, three days after their petition was filed and their attachment levied, they returned to Corsicana and filed claim bond, and took the goods. The suit against Ewing remained on the docket until January 26, 1882, when appellees filed supplemental petition dismissing as to those goods, and taking judgment against Ewing as to the balance of their claim, with foreclosure of attachment on certain property levied on by virtue of their attachment.

It is admitted by appellants that the goods in controversy had not reached their ultimate destination, and if the suit by appellees against Ewing, and the levy of their attachment on the goods in controversy, did not operate a constructive delivery and a waiver of their right of stoppage in transitu, the goods were in transit at the time appellee's bond was filed.

On the 1st day of the July term, 1884, a jury was demanded by appellees, and the case was placed on the jury docket. When the case was reached on the jury docket, appellants applied for a continuance, which was overruled.

Appellants then filed motion to strike the case from the jury docket, which was sustained, and the case placed on the non-jury docket. The case being again called by the court, appellants declined to announce or go into the trial until the jury docket and cases prior to this one had been called and disposed of. The court forced appellants to go to trial while the jury docket was undisposed of, and while they were on the non-jury docket.

The case was tried on the following issue:

1. Appellants tendered the issue that the goods were the property of Ewing and subject to the levy of appellants.

To these appellees replied:

1. By general denial.

2. That the goods belonged to Willis & Bro. for the following reasons:

1. Because Ewing bought the goods from appellees on time and with no intention of paying for them.

2. Because Ewing obtained the goods under false and fraudulent pretenses and representations.

3. Because Ewing represented himself as being solvent, which appellees believed and relied on, when in truth and fact he was insolvent when he purchased the goods.

4. Because Ewing bought the goods with no intention of paying for them, and for the purpose of delivering them to Corsicana creditors in payment of their debts.

5. Because Blooming Grove, fifteen miles west of Corsicana, was the place named by Ewing to Willis as the place of destination of the goods, and they had not reached their destination, and were still in transit when the writ of appellants was levied.

To these issues appellants replied by supplemental issues as follows:

1. General denial.

2. That appellees, with full knowledge of all the facts, sued Ewing for the purchase price of the goods in controversy, in which they alleged the sale to Ewing, and caused an attachment to be levied on these goods, knowing that they had not reached their destination, and that appellees did not dismiss their attachment proceedings until they found prior attachments would about consume the goods, and that by reason of these proceedings, appellees had lost their right to stop the goods in transit.

To these issues appellees replied by supplemental issues as follows:

1. That at the time they sued Ewing and levied their attachment they did not know Ewing had obtained the goods under false pretenses.

2. That at the time they sued Ewing and levied their attachment, they did not know Ewing was insolvent when he purchased the goods.

3. That at the time they sued Ewing and levied their attachment they did not know the transit of the goods had not ended, but believed the goods had been delivered to proper authority and the transit ended.

The trial resulted in a judgment for appellees.

The court filed its conclusions of law and fact in which the court finds as facts the following:

1. That Ewing bought the goods with no intention of paying for them.

2. That when he bought the goods he represented himself as solvent, but in truth and fact he was insolvent then and subsequent to the proceedings in this case.

3. That Allyn & Co. had no notice of the fraud of Ewing, and was in no way connected with the same.

4. That appellees, on the 10th of September, sued Ewing and caused an attachment to be levied on these goods, but that this was done under the belief that Ewing had sold the goods and ended the transit, and that their remedy was by attachment. That having two days later learned that Ewing had not transferred the goods, they filed their claim bond.

From these findings the court deduced the following conclusions of law.

1. That appellants, C. H. Allyn & Co., were not affected by the fraud of Ewing.

2. That appellees, P. J. Willis & Bro., could exercise the right of stoppage in transitu, and that the filing of their claim bond had the effect to dismiss their attachment suit.

3. That appellees, Willis & Bro., did not waive their right of stopping the goods in transit by suing Ewing and levying an attachment on these goods because done under a mistake of facts as to the status of the goods.

The sixth assignment was to the effect that the court erred in refusing to grant appellants a new trial on the ground of newly discovered evidence to the effect that Fox had bills of lading for these goods at and before their delivery to him.

R. S. Neblett and Jno. D. Lee, for appellants, on the refusal to grant a continuance, cited: R. S., art. 1277; Chilton v. Reeves, 29 Tex., 275;Carter v. Eames, 44 Tex., 544.

On the order of trial, they cited: R. S., arts. 1287, 1289, 1290; Sayles' Tex. Prac., sec. 609; McCoy v. Jones, 9 Tex., 366;Kirkland v. Sullivan, 43 Tex., 233.

On the right to reclaim the goods and stop them in transitu, they cited: Moore v. Anderson, 30 Tex., 225; Woodson v. Collins, 56 Tex., 185; Iglehart v. Downs, 19 Tex., 343; Fox & Bro. v. Willis, 60 Tex., 373;Stark v. Alford, 49 Tex., 260;Vickery v. Ward, 2 Tex., 212;Moore v. Gammel, 13 Tex., 120;Howeth v. Mills, 19 Tex., 295;Bishop on Cont., sec. 661; 5 Wait's Acts. and Def., 616, 617; Benj. on Sales, 482, 433; Woodruff v. Noyes, 15 Conn., 335; 2 Schouler on Pers. Prop., 632, 641; Joslin v. Cowee, 52 N. Y.; Bigelow on Estop., 562, 601; Brown v. Littlefield, 11 Wend., 467;R. S., art. 1258; Dibble v. Sheldon, 10 Blatchford, 178; Byard v. Holmes, 4 Vroom, 119; Story on Sales, sec. 446, 447; Rawson v. Turner, 4 Johnson, 473; Butler v. Hildreste, 5 Metcalfe, 49; Sanger v. Wood, 3 Johnson's Ch., 421.

Simkins & Simkins, for appellees.

STAYTON, ASSOCIATE JUSTICE.

The application for a continuance does not contain the requisites of the statute for a first continuance; nor does it contain such statements as to the diligence used to procure the attendance of the witness, or as to the materiality of his testimony as would show that any injury resulted from the action of the court below.

On applications not in compliance with the statute, the granting or refusing of a continuance, as has often been said, is addressed to the discretion of the trial court, and its ruling will not be disturbed by this court, unless it be made clearly to appear that the court has abused its discretion. No such thing is shown by the record in this case. T. & P. R'y Co. v. Hardin, 62 Tex., 369, and citations.

It appears that a jury had been demanded by the defendants at the proper time, and that the cause had been placed on the jury docket, from which the plaintiffs moved to strike it on the ground that the jury fee was not paid on the first day of the term. This motion was sustained, although, as appears from the bill of exceptions, the jury fee was paid before the motion was filed.

The cause was then called for trial in its regular order, and the plaintiffs objected to its trial, on the ground that all the jury cases had not been disposed of; but this objection was overruled.

We are of the opinion that there was no error in this ruling of the court.

The motion to strike the case from the jury docket should not have been sustained (Gallagher v. Goldfrank, 63 Tex., 474), and the appellants cannot be heard to complain that they were not permitted to reap a further advantage than had they already, by the erroneous ruling of ...