Edinburg Theatres, Inc. v. Richter

• Decision Date: 17 April 1963
• Docket Number: No. 14084,14084
• Citation: Edinburg Theatres, Inc. v. Richter, 367 S.W.2d 354 (Tex. Ct. App. 1963)
• Parties: EDINBURG THEATRES, INC., Appellant, v. C. A. RICHTER et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 354

367 S.W.2d 354

EDINBURG THEATRES, INC., Appellant, v. C. A. RICHTER et al., Appellees.

No. 14084.

Court of Civil Appeals of Texas, San Antonio.

April 17, 1963.

Rehearing Denied May 15, 1963.

L. A. Ashcroft, McAllen, A. B. Haston, San Antonio, for appellant.

Henrichson & Bates, Edinburg, Jones & Flores, McAllen, for appellees.

MURRAY, Chief Justice.

This suit was instituted by Edinburg Theatres, Inc., against C. A. Richter and Southwest Theatres, Inc., for the conversion of certain personal property located in three theatres in the City of Edinburg, Hidalgo County, Texas. The trial was to a jury and resulted in judgment that plaintiff take nothing. Edinburg Theatres, Inc., has prosecuted this appeal.

The record shows that one Noble Holt purchased three theatres, namely, the Citrus Theatre, the Juarez Theatre and the Aztec Theatre, from appellees on February 20, 1957, paying the sum of $25,000.00 in cash, and executing a vendor's lien note for the sum of $100,000, together with a deed of trust to secure its payment. The deed, note and deed of trust described the land but made no mention of the personal property and fixtures. It is the contention of appellant that at the conference when the deal was closed, the cash paid, the deed, note and deed of trust passed, it was agreed that appellant would not have a lien or chattel mortgage on the personal property. Later, the personal property located in the three theatres was transferred by Noble Holt to Edinburg Theatres, Inc.

Default was made in the payment of the $100,000.00 note and the theatres were sold under the power of sale provided in the deed of trust, on March 3, 1959. The personal property in the theatres was included in the trustee's deed, and appellees immediately took possession of the theatres and all of the personal property.

The case was submitted to a jury upon the following two special issues which were answered by the jury as indicated:

'SPECIAL ISSUE NO. 1:

'Do you find, from a preponderance of the evidence, that the Defendants, in Hidalgo County, Texas, on or about March 3, 1959, did take and convert to their own use and benefit any of Plaintiff's property, which is described in Plaintiff's petition?

'Answer 'Yes' or 'No'.

'We, the Jury, answer: No.

'SPECIAL ISSUE NO. 2:

'Do you find, from a preponderance of the evidence, that the Plaintiff, Edinburg Theatres, Inc., its agents or employees, had notice of a claim to a lien if any by Southwest Theatres, Inc., on the personal property, if any, located within the Citrus, Aztec and Juarez Theatres, prior to December 18, 1958?

'Answer 'Yes' or 'No'.

'We, the Jury, answer: Yes.'

Based upon these findings, the trial court entered a take-nothing judgment against appellant.

Appellant did not make a motion for judgment notwithstanding the verdict, but here contends that the evidence conclusively establishes the fact that the deed of trust did not cover the personal property located in the three theatres and therefore appellees had no title to such property by reason of the foreclosure under the power of sale provided in the deed of trust.

The issues submitted to the jury were general issues, and in effect resolved all of the conflicts in the evidence in favor of appellees.

The vendor's lien and the deed of trust lien unquestionably covered the land, the theatre building and the fixtures in the building. The fixtures were a part of the realty and were therefore covered by the deed of trust. The evidence is sufficient to show that a large portion of the so-called personal property in the buildings were fixtures, such as the seats, fastened to the floor, the carpets on the floor and stairways, and the installed air conditioners and gas fixtures. On the other hand, there was other personal property that was not fixtures, such as chairs, pianos, adding machines, popcorn machines and typewriters.

When the deal was closed for the sale of the three theatres to Noble Holt by Southwest Theatres, Inc., represented by C. A. Richter, the owner of all the stock in the...