Equitable Loan Soc. v. Taylor Bros. Jewelry Co.

• Decision Date: 10 November 1916
• Docket Number: (No. 7249.)
• Citation: 189 S.W. 516
• Parties: EQUITABLE LOAN SOC. v. TAYLOR BROS. JEWELRY CO.
• Court: Texas Court of Appeals

189 S.W. 516

EQUITABLE LOAN SOC. v. TAYLOR BROS. JEWELRY CO.

(No. 7249.)

Court of Civil Appeals of Texas. Galveston.

November 10, 1916.

Rehearing Denied November 23, 1916.

Appeal from Harris County Court, at Law; C. C. Wren, Judge.

Action by Taylor Bros. Jewelry Company against the Equitable Loan Society and W. W. McDonald. The suit was dismissed as to McDonald, and from judgment for plaintiff the remaining defendant appeals. Affirmed.

Sochat & Lipper, of Houston, for appellant. E. T. Chew, of Houston, for appellee.

LANE, J.

This suit was instituted by Taylor Bros. Jewelry Company, appellee, against the Equitable Loan Society, appellant, and W. W. McDonald, and in its petition alleges that on the 1st day of August, 1914, W. W. McDonald was indebted to it in the sum of $330; that to secure the payment of said debt said McDonald made, executed, and delivered to appellee a mortgage on a certain diamond ring, which said mortgage was duly registered, as required by law, on the 4th day of August, 1914; that while said McDonald still owed appellee $247.10 of said indebtedness and while said mortgage was still a valid subsisting unsatisfied lien upon said diamond ring, appellant obtained possession of said ring, sold the same to a nonresident of this state and thereby converted and placed the same beyond the reach of appellee, without its consent, to its damage in the sum of $247.10, for which it prayed judgment.

Appellant, one of the defendants in the lower court, answered and say that on the 8th day of April, 1915, it was engaged in the business of a pawnbroker; that it was regularly licensed as such, and that it is still such; that on said 8th day of April, 1915, it did sell to one R. Levy a certain diamond ring for $135 in the manner and form as required by law of pawnbrokers, which said ring had theretofore been pledged to it by W. W. McDonald for a loan of $125; that it does not admit or deny that said ring so sold by it to Levy was the ring mortgaged by McDonald to appellee; that if it was the ring upon which appellee held a lien appellant had no notice of the existence of such lien; that said ring was of the value of $125, and no more. And in conclusion appellant says that it did not convert any property upon which appellee held a lien, that it only sold whatever right or title it had acquired by the law of this state governing pawnbrokers, and that in so doing it did not act in derogation of any of the rights of appellee, and that it did not know of any claim of appellee, and that appellee did not notify it of any such claim until long after said ring was regularly sold; that said sale was made in legal manner, and that said ring was sold for a reasonable sum. It being admitted that W. W. McDonald was insolvent, he was dismissed from the suit.

The cause was tried by the court without a jury, and judgment was rendered in favor of appellee against appellant for the sum of $247.10. From such judgment the Equitable Loan Society has appealed.

The undisputed evidence shows that W. W. McDonald was indebted to appellee on August 1, 1914; that he gave appellee a mortgage on the ring in question at that time; that said mortgage was duly registered as required by law on the 4th day of August, 1914; that there was still due and unpaid on said indebtedness of McDonald to appellee the sum of $247.10 at the time this suit was brought; that said mortgage at that time was a valid, subsisting, unsatisfied lien on said ring; that prior to the 8th day of April, 1915, appellant loaned McDonald $125, and took the ring in question in pawn to secure the payment of said loan; that McDonald made default in the payment of said loan, and that on the 8th day of April, 1915, appellant, as a licensed pawnbroker, sold said ring to one R. Levy, a resident of New York, for $125, after advertising the same in manner and form as required by law relative to pawnbrokers, and that appellant thereafter in proper time made proper report of such sale as required by law of pawnbrokers, and that all the proceeds of such sale were applied to the payment of the loan made by appellant to McDonald and costs incident to...