Euchey v. Adam Schaaf, Inc.

• Decision Date: 10 May 1928
• Docket Number: (No. 635.)
• Citation: 7 S.W.2d 168
• Parties: EUCHEY et ux. v. ADAM SCHAAF, Inc.
• Court: Texas Court of Appeals

Page 168

7 S.W.2d 168

EUCHEY et ux. v. ADAM SCHAAF, Inc.

(No. 635.)

Court of Civil Appeals of Texas. Waco.

May 10, 1928.

Appeal from Dallas County Court at Law; Paine L. Bush, Judge.

Suit by Adam Schaaf, Inc., against R. L. Euchey and wife, in which defendants asserted a cross-action. Judgment for plaintiff, and defendants appeal. Affirmed.

C. W. Massie, of Fort Worth, for appellants.

John H. Thomas and G. Q. Youngblood, both of Dallas, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, Adam Schaaf, Inc., to recover of appellants R. L. Euchey and wife, Mrs. R. L. Euchey, the sum of $220, with accrued interest, alleged to be the balance due on the purchase price of a piano, and to foreclose a chattel mortgage thereon, or, in the alternative, to recover said piano. Appellee declared on a note for the sum of $450 with interest, which it alleged Mrs. Euchey had executed and delivered to it in payment for said piano, and also on a chattel mortgage which appellee alleged she had executed upon said piano to secure said note. Appellee alleged that said piano was a necessity in the home of appellants for the use of their daughter in completing her musical education. Appellee further alleged that, while appellant R. L. Euchey did not join his wife in the execution and delivery of said note and mortgage, he knew she had purchased said piano and the purpose of such purchase; that he had permitted her to continue to make payments thereon, and had permitted such piano to be placed and kept in their home and to be continually used therein; that he had thereby acquiesced in said contract of purchase, and become bound by the terms thereof, and was estopped to deny that such contract was executed for his own use and benefit as well as the use and benefit of his family. Appellee, pleading in the alternative, in event the court should find the contract for the purchase of said piano unenforceable, alleged it was the owner of the same, and prayed for judgment for the recovery thereof. Appellant R. L. Euchey interposed a plea of privilege, which was contested by appellee, and on hearing before the court was overruled. Appellants then answered, denying that said piano was a necessity, and alleging that they already had a good piano in their home. They also pleaded the coverture of Mrs. Euchey, and by way of cross-action alleged that Mrs. Euchey had paid out of community funds $237.73 on the purchase price of said piano; that appellee was holding their old piano; that the value of the same was $250, and they prayed recovery for both said sums.

The case was submitted to a jury on special issues, in response to which the jury found, in substance, that: (a) the piano delivered by appellee in the home of appellants was a necessity therein; (b) that appellant R. L. Euchey, upon learning the facts, did not use the diligence which a reasonably prudent man would have used under the circumstances to return the piano and repudiate the contract for the purchase thereof which his wife had made; (c) that appellants were husband and wife, and living together before the purchase of said piano, at the time thereof, and long thereafter. The court entered judgment on the verdict of the jury in favor of appellee against the appellants for the unpaid balance on said contract of purchase, with interest to date, and for foreclosure of said mortgage. The court also rendered judgment denying appellants any recovery on their cross-action.

Opinion.

Appellants by their first proposition complain of the action of the court in overruling the plea of privilege interposed by R. L. Euchey. Said plea was overruled on the 28th day of November, 1925. No appeal from the order overruling the same was prosecuted. The case was tried on its merits October 20, 1926. Appellants, by failing to prosecute an appeal from the order overruling said plea, waived their right to have the same reviewed in this appeal from a judgment on the merits rendered at a subsequent term. Smith Bros. Grain Co. v. Windsor & Stanley (Tex. Com. App.) 255 S. W. 158; Luse v. Cisco Grain Co. (Tex. Civ. App.) 241 S. W. 313, 314.

Appellants present a proposition complaining of the action of the trial court in admitting in evidence the note sued on. Appellee in its petition declared upon a note dated November 30, 1923, for the sum of $450, with interest from date at the rate of 8 per cent. per annum, and admitted payments thereon aggregating $230. Appellee also filed in connection with its pleadings the contract for the purchase of said piano executed and delivered to it by Mrs. Euchey. The so-called note, as well as the mortgage given on the piano to secure...