Campbell Printing Press & Manuf'G Co. v. Powell

Decision Date24 June 1890
Citation14 S.W. 245
PartiesCAMPBELL PRINTING PRESS & MANUF'G CO. v. POWELL <I>et al.</I>
CourtTexas Supreme Court

Robt. H. Rogers and Dixon & Marooney, for appellant. Coombs & Gano, for appellees.

STAYTON, C. J.

On February 28, 1884, appellant agreed to sell a printing outfit to L. F. Powell for the sum of $4,253.94, payable in 12 months. It was further agreed that the purchaser would deposit, as collateral security for the payment of the sum named, a note for $5,000, executed by Powell and the other defendants. The instrument, through which the contract between appellant and Powell was made, provided that the machinery should remain the property of appellant until it was paid for, and contemplated that it should be delivered to Powell, but that, in default of payment, appellant should have the right to demand from the person with whom the collateral was to be deposited that instrument, and to enforce its payment so far as necessary; and that, upon payment of the purchase money, appellant would make title to the machinery. The instrument was executed by Powell and by appellant, and Powell executed the following: "$4,253.94. Gainesville, Tex., February 28, 1884. Twelve months after date I promise to pay to the Campbell Printing Press and Manufacturing Company, of New York, or order, the sum of four thousand two hundred and fifty-three dollars ninety-four cents, for value received, with interest at the rate of eight per cent. per annum until paid. This note is given for the payment of printing presses, engine, type, and material, and secured by a joint note as collateral, at twelve months, dated at Gainesville, Tex., the 28th day of February, 1884, for five thousand dollars, and bearing interest at 8% per annum, drawn to the order of L. F. Powell, and signed by Jno. H. Stone, Geo. W. West, G. W. Harper, J. M. Culp, D. D. Swearingen, Richard McCubbin, J. M. Rolls, L. F. Powell, E. T. Morris, H. Hulen, E. C. Perry, E. L. Morris, and Sandy Horton. The same to be deposited with J. H. Strange of Dallas, Tex., and by him to be held in trust as security for the payment of this note. L. F. POWELL." The note actually deposited as collateral was as follows: "$5,000. Gainesville, Tex., February 28, 1884. Twelve months after date we promise to pay to L. F. Powell the sum of five thousand dollars, ($5,000,) for value received, with interest at the rate of eight per cent. per annum from date, interest payable twelve months after date. JOHN H. STONE. G. W. WEST. W. G. HOPSON. J. M. CULP. D. D. SWEARINGEN. RICHARD McCUBBIN. L. F. POWELL. E. T. MORRIS. H. HULEN. E. C. PERRY. E. L. MORRIS. SANDY HORTON. J. M. ROLLS." This paper was endorsed by L. F. Powell. The contract between appellant and Powell was made for the former by an agent, Tilleston, and the evidence leaves it uncertain whether Powell delivered the collateral note directly to Strange, or to Tilleston. The machinery and other property was delivered to Powell, but the written contract between the parties was not recorded. The note not being paid, this action was brought on May 14, 1886, on the two obligations, against their makers. At some time as early as March 3, 1884, for the purpose of securing the makers of the collateral obligation, Powell executed to them a trust-deed on the property purchased, and perhaps on some other, which empowered them, if his note to appellant was not paid, to sell the mortgaged property, and from the proceeds to satisfy the debt. That instrument was duly recorded on October 10, 1884; but it seems that some, if not all, of the makers of the collateral paper were not aware of its execution until after the notes matured. By an amended petition, filed on May 20, 1887, appellant alleged the execution of this mortgage, and sought its foreclosure; and therein it was alleged that, on March 10, 1885, Powell, for the further security of the makers of the accommodation paper, conveyed to them the mortgaged property. On February 12, 1888, appellant filed what was termed a supplemental petition, in which, in addition to statement of matters before pleaded, it set up the fact that the title to the property was to remain in it until paid for, and on this ground, as well as by reason of the mortgage, asserted a lien on the property, and no objection seems to have been urged in the court below to the assertion of this right in a supplemental petition. It seems that, after the makers of the accommodation paper knew of the delivery of the note signed by them, they released the mortgage executed by Powell for their security. This was done in March, 1886. It further appears that, about June, 1885, Powell, to better secure the makers of the accommodation note, conveyed to them the property purchased; and that they subsequently reconvened to him; but it does not appear whether this was before or after they had knowledge of the fact that the note had been delivered, with the condition on which it was to be delivered torn off. The defendants, other than Powell, denied under oath the execution of the accommodation note, and further pleaded, if they signed the paper, that when they did so it had attached to it on the same paper, and as part of it, words in substance as follows: "The following note shall not be delivered or have effect until ten men of unqualified solvency shall have first signed the same as sureties." They alleged that this part of the paper was torn off after it came into the possession of appellant's agent, without their knowledge or consent; that there were not 10 solvent names on it; and that the agreement was that the name of appellant should be inserted as payee in a blank space left for that purpose; but that the name of Powell was inserted. It was agreed that the following words were written on the paper, just above the note, when it was signed by the defendants: "The following note is not to be delivered until signed by ten men of unqualified solvency;" but the evidence is conflicting as to whether this was torn off before the note was delivered to appellant's agent, and as to whether he even knew that such a writing was ever attached to the note. Under the finding of the jury and charge of the court it must be held, however, that the jury found that this part of the paper was removed from the note with the knowledge...

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    • United States
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    ... ... Co. (Utah) 165 P. 462; Sawyers ... v. Campbell, (Ia.) 78 N.W. 56; Davis v. Gray, ... 61 Tex. 506; ... v. Simon, ... (Wis.) 80 N.W. 71; Campbell Printing Press v ... Powell, (Tex.) 14 S.W. 245; Smith v ... ...
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