Elder Mfg. Co. v. The Leader

• Decision Date: 04 December 1929
• Docket Number: No. 7399.,7399.
• Citation: 25 S.W.2d 274
• Parties: ELDER MFG. CO. v. THE LEADER, Inc.
• Court: Texas Court of Appeals

25 S.W.2d 274

ELDER MFG. CO. v. THE LEADER, Inc.

No. 7399.

Court of Civil Appeals of Texas. Austin.

December 4, 1929.

Rehearing Denied in Part January 8, 1930.

Rehearing Overruled in Part January 29, 1930.

Second Rehearing Overruled January 29, 1930.

Appeal from Kaufman County Court; Chas. Ashworth, Judge.

Action by the Elder Manufacturing Company against the Leader, Inc., in which certain property of defendant was attached and recovered back by defendant by giving a replevy bond. Plaintiff recovered judgment against defendant on the debt, but the affidavit and bond in attachment were quashed, and recovery was denied plaintiff against the sureties on the replevy bond, and plaintiff appeals.

Reversed and rendered.

Carter & Berwald and Elihu E. Berwald, all of Dallas, for appellant.

Amgus G. Wynne, of Kaufman, for appellee.

BLAIR, J.

Appellant sued appellee, The Leader, Inc., and The Kemp-Leader, Inc., alleged to be one and the same, for debt; and caused a writ of attachment to be levied upon personal property belonging to appellee of the value of $300, which appellee replevied with William Goldstein and H. W. Haynie as sureties on the replevy bond. Judgment was for appellant against appellee for $332.85, with 6 per cent. interest from date; but, on motion of William Goldstein, one of the sureties on the replevy bond, the affidavit and bond in attachment were quashed, because, after being filed, and after the writ issued against "The Leader, Inc.," appellant's agent changed them to read against "The Leader, Inc.," instead of "The Kemp-Leader, Inc.," as originally filed, and appellant was denied a recovery against the sureties on the replevy bond; hence this appeal.

The affidavit and bond were erroneously quashed because:

(a) The alterations or changes in the affidavit and bond were immaterial, and did not affect the liability of the parties thereto, nor the terms of the instruments. The Leader, Inc., and the Kemp-Leader, Inc., were alleged to be one and the same, and the replevy bond recites that, "whereas, by virtue of a writ of attachment, issued against The Leader, Incorporated, * * * Now, therefore, we, Kemp-Leader, Incorporated, doing business as The Leader, as principal, etc." Thus all parties are shown to have used the names interchangeably and as meaning the same party or parties, and the liability under the affidavit and bond in attachment remained the same after as before the alterations or changes.

It is well settled that an alteration or change not affecting the liability of the parties or the terms of an instrument does not render it void. Reed v. Roark, 14 Tex. 329, 65 Am. Dec. 127; Park v. Glover, 23 Tex. 469; Citizens' Cotton Oil Co. v. Elliott (Tex. Civ. App.) 294 S. W. 654; Texas Jurisprudence, vol. 2, p. 694, § 3; 2 C. J. 1173, § 2. Analogous to this principle are those cases holding that misnomers in citations or other instruments which cannot mislead are immaterial. Western Bank & Trust Co. v. Ogden, 42 Tex. Civ. App. 465, 93 S. W. 1102; Houston Land & Loan Co. v. Danley (Tex. Civ. App.) 131 S. W. 1143; Arcola Sugar Mills Co. v. Doherty (Tex. Civ. App.) 254 S. W. 650.

(b) The sureties having used the names of "The Leader, Incorporated," and the "Kemp-Leader, Incorporated," interchangeably, and as being one and the same party or parties in the replevy bond itself, are estopped to assert that appellant had no right to so use the names interchangeably and as meaning one and the same party or parties in other proceedings in the case. Calvert v. Bennett (Tex. Civ. App.) 286 S. W. 303; Sellers v. Puckett (Tex. Civ. App.) 180 S. W. 639; Amarillo Nat. Bank v. Sanborn (Tex. Civ. App.) 169 S. W. 1075. This is under the rule that, where a party in a judicial proceeding assumes a position, he is estopped to assume another position inconsistent therewith, to the prejudice of his adversary.

(c) A surety on a replevy bond has no right to attack the validity of the affidavit and bond in attachment and under...