Citizens' Nat. Bank v. Elk Mfg. Co., 1372-5531.
Decision Date | 28 June 1930 |
Docket Number | No. 1372-5531.,1372-5531. |
Citation | 29 S.W.2d 1062 |
Parties | CITIZENS' NAT. BANK OF ABILENE et al. v. ELK MFG. CO. |
Court | Texas Supreme Court |
Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, and O. L. Parish, of Ballinger, for plaintiffs in error.
Scarborough, Ely, Brown & King, Dallas Scarborough, and Scarborough & Wilson, all of Abilene, for defendant in error.
For a partial statement of the material facts of this case, we quote the following statement from the opinion of the Court of Civil Appeals:
The undisputed facts show that G. B. Brown executed a deed of trust dated December 1, 1926, to J. O. Shelton, trustee for the Citizens' National Bank of Abilene, and gave a lien upon certain lots or tracts of land described as follows: Lots Nos. 12, 13, and 14, in block 46, in the town of Tuscola, Taylor county, Tex.; a part of block No. 169, and lots Nos. 5 and 6 in block No. 170, in the town of Anson, Jones county, Tex., together with all and singular the rights and appurtenances thereto in any wise belonging. That a deed of trust lien was given upon the foregoing property to secure the payment of a certain indebtedness due the Citizens' National Bank of Abilene in the sum of $24,265. 10; that this amount represented a note executed by G. B. Brown of that date and was given in lien and extension of a certain indebtedness in the sum of $7,171.48, due by G. B. Brown to the Murray Company, as evidenced by certain notes theretofore executed by the said Brown to the said Murray Company, and the further sum of $15,938.13, evidenced by a note executed by Brown payable to the bank. It was further admitted that Brown was the owner of the lots above described and had been the owner thereof since the 14th day of May, 1923, and that the bank, at the time Brown executed the deed of trust to Shelton, trustee, for the bank, advanced that amount of money to take up the indebtedness that the said Brown owed the said Murray Company for gin machinery; that the deed of trust dated the 1st day of December, 1926, above described, was recorded in Taylor county on the 2d day of December, 1926; that the said G. B. Brown owned two gins, one located in the town of Tuscola, in Taylor county, and one in the town of Anson, Jones county; that G. B. Brown gave an order to the Elk Manufacturing Company, dated April 24, 1926, for one Elk Burr Extractor and executed therefor two notes, each for the sum of $1,100, one due December 1, 1926, and the other due December 1, 1927. The order contained the following:
That G. B. Brown gave an order for machinery to the Elk Manufacturing Company, dated June 17, 1926, for one Elk burr extractor, and executed therefor two notes, one for the sum of $850, due January 1, 1927, and one for the sum of $850, due January 1, 1928, and containing the same stipulations as are contained in the foregoing order, which have already been set out, except that this machinery will be located at or near Tuscola, in Taylor county, Tex. It was further agreed that the foregoing deed of trust was filed for record in Jones county on December 6, 1926, and that on or about the 1st of August, 1927, G. B. Brown filed a petition in bankruptcy in the federal court at Abilene and was adjudged a bankrupt; that at that time Brown had not conveyed the title to the property above described and same passed to the trustee in bankruptcy and charged with whatever liens that were against it. In due time the foregoing mortgage was foreclosed in said court and deed executed by the trustee in bankruptcy and approved by the court to the property, and same was conveyed to the Citizens' National Bank and to H. Gieske.
The testimony further tends to show that G. B. Brown had been in the ginning business for thirty-five or forty years and was the owner of several gins; that the burr extractors involved in this suit were put in the gins to improve the service, and most of the gins in this country had begun to install them; that the burr extractors were very heavy and weighed something like 9,000 pounds, and that a platform about twenty or thirty feet across the center of the building was built to take care of this machinery and cleaning system. They were heavy machines and required substantial support. There was testimony to the effect that the machines, or part of them, were nailed or screwed to the platform; that there was also another equipment that carried the refuse out of the gin, which was connected with the burr extractor, and the hulls from the extractor went through a chute or conveyor out of the building; that this machine stands on a platform which goes down and connects with the floor and is held up by heavy pieces of timber of some kind. The burr extractor is driven from the line shaft which is connected with the engine. When the extractor was installed an additional wheel for belts was made. This machine operates from a pulley from a counter shaft under the platform; that it is operated with a belt on a pulley, which operates with two belts, one on each end of the machine.
The agent of the Elk Manufacturing Company testified substantially as follows: ...
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