Carrollton Acceptance Co. v. Wharton

• Citation: 22 S.W.2d 985
• Decision Date: 18 December 1929
• Docket Number: (No. 8287.)
• Parties: CARROLLTON ACCEPTANCE CO. v. WHARTON et al.
• Court: Texas Court of Appeals

Page 985

22 S.W.2d 985

CARROLLTON ACCEPTANCE CO. v. WHARTON et al.

(No. 8287.)

Court of Civil Appeals of Texas. San Antonio.

December 18, 1929.

Rehearing Denied January 15, 1930.

Appeal from District Court, Harris County; Robert L. Cole, Judge.

Suit by C. R. Wharton against Wells-Kennedy Company, wherein Carrollton Acceptance Company intervened. Judgment for plaintiff, and intervener appeals. Affirmed.

A. B. Wilson, of Houston, for appellant.

Baker, Botts, Parker & Garwood, of Houston, for appellees.

FLY, C. J.

This suit was instituted by C. R. Wharton against Wells-Kennedy Company, alleging that in June, 1926, said Wharton leased to the defendant named certain property with the buildings thereon, being a garage and storeroom located on the south half of lot 10 of block 346, city of Houston, together with a filling station, equipment, machinery, and appliances. It was alleged that the defendant agreed to pay said Wharton for said lease the sum of $200 per month during the first twelve months and thereafter the sum of $225 per month, during the remainder of the three-year period of the lease; that in September, 1927, defendant abandoned the lease and left the property, at which time there was due and owing $2,375. Certain property belonging to the defendant was distrained by said Wharton, and he prayed for his debt and the foreclosure of his lien upon the distrained property. No answer was filed by Wells-Kennedy Company, but appellant, a Michigan corporation, intervened in the suit and claimed as its property five trucks, distrained by Wharton, of the value of $8,261.73. This claim was traversed and denied by C. R. Wharton. Trial was had by the court, a jury being waived, and judgment was rendered against Wells-Kennedy Company, and J. Wells and C. W. Kennedy, jointly and severally in favor of Wharton for $2,375, and against appellant for the sum of $3,050, and that appellant take nothing as against C. R. Wharton. Appellant perfected its appeal.

In his answer to the plea of intervention by appellant, Wharton alleged that about March 1, 1926, the Ruggles Motor Truck Company, a foreign corporation engaged in the manufacture of automobile trucks, doing business in Saginaw, Mich., and through agencies selling trucks in Texas, that one Seward, held out by the truck company as its agent, stated that the company desired to establish a sales agency in Houston, and that one George Shaffer would be such sales agent and desired to lease the premises of Wharton for a place of business in distributing Ruggles trucks, and that such company would see that the rent was promptly paid, and the premises were leased to Shaffer for a term of years, and Shaffer, Seward, and the Ruggles Motor Truck Company went into possession of the premises. The rent was not paid, and at the request of Seward and the truck company Wharton ejected Shaffer from the premises, and the Ruggles Company requested Wharton to permit Wells and Kennedy to take over Shaffer's lease, which was done, and the Ruggles Motor Truck Company became...