Chase-Hackley Piano Co. v. Clymer

• Decision Date: 20 March 1918
• Docket Number: (No. 1301.)
• Citation: 202 S.W. 214
• Parties: CHASE-HACKLEY PIANO CO. v. CLYMER et al.
• Court: Texas Court of Appeals

Page 214

202 S.W. 214

CHASE-HACKLEY PIANO CO. v. CLYMER et al.

(No. 1301.)

Court of Civil Appeals of Texas. Amarillo.

March 20, 1918.

Appeal from Grayson County Court; Dayton B. Steed, Judge.

Action by the Chase-Hackley Piano Company against W. E. Clymer and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

R. W. Stoddard and Jno. T. Suggs, both of Denison, for appellant. J. S. Kone, of Denison, for appellees.

BOYCE, J.

Chase-Hackley Piano Company delivered to L. W. Wiley two pianos on contract, which we construe to evidence a consignment for sale. Wiley mortgaged these pianos to appellee Clymer to secure the payment of the individual indebtedness of Wiley to Clymer for money borrowed and represented by two notes, delivering possession of the pianos to Clymer, to be held until the notes were paid. Wiley represented to Clymer that he was the owner of the pianos, and Clymer made the loan and took the mortgages on the faith of this representation without knowledge that the Chase-Hackley Piano Company had any interest in them. The said company brought suit against Clymer to recover the pianos, and Clymer set up in his answer the mortgage executed by Wiley as stated, and asked for judgment on his notes and foreclosure of his mortgage lien on the pianos. This appeal is from a judgment for defendant, rendered on verdict by the jury under a peremptory instruction.

We construe the contract under which the pianos were delivered to Wiley as creating the relation between the parties of owner and factor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Stein Double Cushion Tire Co. v. Fulton, 159 S. W. 1013. The contract is very similar to that construed by the Supreme Court in the case of Milburn Mfg. Co. v. Peak, supra. The contract, therefore, did not fall within the provisions of articles 5654 and 5655, R. S., in regard to chattel mortgages.

It was the rule at common law that a pledge or mortgage of property held by the factor for sale, made by the factor to secure his individual indebtedness, could not be enforced against the owner of the goods, though the pledgee or mortgagee had no notice of the fact that the factor did not in fact own the goods, and took the mortgage or pledge on the faith of his belief that the factor was the owner, unless the owner of the goods, by some acts other than the mere delivery of possession of the property to the factor, had estopped himself from denying the right of the factor to treat the goods as his own. McCreary v. Gaines, 55 Tex. 488, 492, 40 Am. Rep. 818; Renfroe v. Hall, 202 S. W. 218, a...