Edmondson v. Carroll

• Decision Date: 07 October 1933
• Docket Number: No. 12889.,12889.
• Citation: Edmondson v. Carroll, 65 S.W.2d 1107 (Tex. App. 1933)
• Parties: EDMONDSON v. CARROLL.
• Court: Texas Court of Appeals

65 S.W.2d 1107

EDMONDSON v. CARROLL.

No. 12889.

Court of Civil Appeals of Texas. Fort Worth.

October 7, 1933.

Rehearing Granted December 9, 1933.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by Ralph Carroll against H. Edmondson, who brought a cross-action. Judgment for plaintiff, and defendant appeals.

Affirmed in part and cause remanded for trial of the cross-action.

Chas. T. Rowland, of Fort Worth, for appellant.

Slay & Simon, of Fort Worth, for appellee.

LATTIMORE, Justice.

This is a second appeal of this case in which appellee originally sued appellant for an elevator taken from a building on which appellee held an unsatisfied mortgage. After the taking of the elevator, appellee had the security sold under judgment of foreclosure, not including the elevator, and said security did not at said sale bring the amount of appellee's mortgage debt. Appellee, in connection with the suit, obtained a writ of sequestration to be levied on the elevator in the hands of defendant who had taken the elevator from the building by virtue of a sale of same attempted to be made him by the then owner of the building. The appellant replevied.

On former appeal (28 S.W.(2d) 250), the trial judgment was reversed and remanded because the measure of damages was not the elevator but the damages to appellee's security. Carroll v. Edmondson (Tex. Com. App.) 41 S.W.(2d) 64.

Appellee thereupon amended his petition, alleging the facts conformable to such adjudged measure, and, from a verdict sustaining such allegations, the defendant appeals.

We do not believe the amended petition sets up a new cause of action. All of the facts which sustain the original cause of action sustain also the amended cause of action, to which is added proof of the value of the building before and after the removal of the elevator. The discussion of this question in Elmo v. James (Tex. Civ. App.) 282 S. W. 835, is adequate to explain our holding and needs no elaboration.

The notes sued on were in fact acquired by a partnership consisting of Carroll and others who by agreement placed the title in Carroll "for convenience." These facts were not pleaded but appeared in the evidence. The contention is made that it was necessary for all the partners to appear as parties of record in this suit to recover damages. We recognize the general rule that all partners must appear as parties. Allen v. Fleck, 54 Tex. Civ. App. 507, 118 S. W. 176; Houghton v. Puryear, 10 Tex. Civ. App. 383, 30 S. W. 583. Exceptions thereto are as well settled. Tinsley v. Dowell, 87 Tex. 28, 26 S. W. 946; Cleveland v. Heidenheimer, 92 Tex. 111, 46 S. W. 30. The only right the appellant has is that he not be required to pay the damages he has occasioned, to some party not entitled to same. It is of no consequence to him that the person he thought he had damaged suffers himself to be bound by payment to another. Appellant must be protected against double payment, i. e., the judgment herein must bind Butcher & Sweeney, the other partners. The transaction by which Carroll took title to the note was a partnership transaction and Butcher & Sweeney, the partnership, as shown by their agreement, have placed the title to the note in appellee, thereby consenting to Carroll's acts, properly performed under the powers of ownership, "by the usages" of the trade "to act as owner." The appellant was entitled to investigate this relation fully in order that he might satisfy himself fully that he was protected against claims by Butcher & Sweeney on this same transaction. He was accorded this right and the said other partners testified in this cause that this suit was brought for all the partners with their consent and in effect that they recognize this final judgment, a final adjudication of their rights. In our system of blended law and equity administration, we believe the judgment as rendered presents no reversible error as to parties.

The fact that the recovery sought by plaintiff was in fact for the partnership was not pleaded and we think this was not good pleading. Houghton v. Puryear, 10 Tex. Civ. App. 383, 30 S. W. 583. However, as shown in our original opinion, the evidence as developed and the judgment forever binds the other partners to this judgment. The error therefore is harmless. Rule 62A; Cobb Brick Co. v. Lindsay (Tex. Civ. App.) 277 S. W. 1107.

The court wrote into the judgment a finding that Carroll brought this suit on behalf of the partnership. This finding of itself would not add to the conclusiveness of the proceedings as against Butcher & Sweeney. However, as a recital of what actually occurred on the trial and of the admissions therein of the said parties, it is not improper.

Appellant, more than four years from the levy of the writ of sequestration but while the suit in which same was issued was still pending and within two years from judgment by the Supreme Court that appellee could not sue for the identical elevator removed, filed his cross-action for damages for wrongful sequestration.

The trial court sustained a special exception to such cross-action, holding that same showed on its face that it was barred by limitation, which commenced when the writ was levied. In this the learned trial court is mistaken. A part only of defendant's cause of action for such damages is the levy of the...