Commercial Credit Co. v. Schlegel-Storseth Motor Co., (No. 1276-5321.)
| Decision Date | 05 February 1930 |
| Docket Number | (No. 1276-5321.) |
| Citation | 23 S.W.2d 702 |
| Parties | COMMERCIAL CREDIT CO. v. SCHLEGEL-STORSETH MOTOR CO. et al. |
| Court | Texas Supreme Court |
Action by the Commercial Credit Company against the Schlegel-Storseth Motor Company and another. Judgment for plaintiff against named defendant, but in favor of defendant Farmers' & Merchants' State Bank of Shamrock, was affirmed by the Court of Civil Appeals, and plaintiff brings error. Affirmed in part, and in part reversed and rendered.
Turner, Culton & Gibson, of Amarillo, for plaintiff in error.
Hill & Engledow, of Shamrock, and Stone & Guleke, of Amarillo, for defendants in error.
This suit was brought by the plaintiff in error, the Commercial Credit Company, against the Schlegel-Storseth Motor Company for debt; and against the defendant in error the Farmers' & Merchants' State Bank of Shamrock for the conversion of two certain automobiles, upon which the plaintiff in error claims a lien to secure the payment of the debt sought to be recovered of the motor company. The value of the automobiles, alleged to have been converted by the bank, is sought to be recovered of the bank. The trial court rendered judgment in favor of the plaintiff in error against the motor company for the amount of the debt sued for; but rendered judgment in favor of the bank on the cause of action asserted against the latter. The motor company makes no complaint of the judgment. The plaintiff in error appealed, and the judgment of the trial court has been affirmed by the Court of Civil Appeals.
The facts are substantially as follows:
At the time of the several occurrences hereinafter mentioned the motor company was engaged in the business of selling automobiles, at retail. The company's place of business was located at Shamrock, Tex. The motor company contracted for the purchase of the two automobiles in controversy, from a wholesale dealer at Amarillo. The motor company was to pay cash for the automobiles. The vendor drew a draft on the motor company for the purchase price agreed upon, and forwarded it to the Farmers' & Merchants' State Bank of Shamrock, for collection. The plaintiff in error, at the request of the motor company, paid the draft. At the time the draft was paid, and in the same transaction, the motor company promised to pay to the plaintiff in error, three months after date, the amount paid on the draft by the plaintiff in error, with interest from date; and the motor company executed a bill of sale to the plaintiff in error for the automobiles; and also executed an instrument which is denominated a "Trust Receipt," which provided, in substance, that the motor company was to take and hold possession of the automobiles, as trustee for the plaintiff in error, and, as such trustee, sell them in the regular course of the motor company's business, and turn over the proceeds of sale to the plaintiff in error as payments on the motor company's said indebtedness. In the last-mentioned instrument, the title to the automobiles was expressly reserved in the plaintiff in error; and it was also provided that, in case the debt of the motor company was not paid at maturity, the plaintiff in error could sell the automobiles at public or private sale, without having same at the place of sale, and apply the proceeds as a credit on the motor company's debt. The Farmers' & Merchants' State Bank received actual notice of this transaction at the time it occurred. The "Trust Receipt" was not placed of record, however, until after the bank took possession of the automobiles as hereinafter shown.
The motor company took possession of the automobiles, and they were daily exposed for sale, in the regular...
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