F. Groos & Co. v. First Nat. Bank of Iowa Park

• Decision Date: 24 January 1903
• Citation: F. Groos & Co. v. First Nat. Bank of Iowa Park, 72 S.W. 402 (Tex. App. 1903)
• Parties: F. GROOS & CO. v. FIRST NAT. BANK OF IOWA PARK.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 402

F. GROOS & CO. v.FIRST NAT. BANK OF IOWA PARK.^*

Court of Civil Appeals of Texas.

January 24, 1903.

Appeal from Wichita countycourt; W. P. Skeen, Judge.

Action by the First National Bank of Iowa Park against F. Groos & Co.From a judgment in favor of plaintiff, defendant appeals.Reversed.

Montgomery & Hughes, for appellant.Mathis & Barwise, for appellee.

STEPHENS, J.

August 26, 1901, J. A. Cox gave appellee bank a chattel mortgage on "7,000 or more bushels of No. 2 soft wheat, while contained in my [Cox's] granary in Iowa Park, and in W. O. Anderson's elevator at Vernon, Texas," to secure an indebtedness, as therein recited, "of $5,500, more or less, as evidenced by my [Cox's] open account due said bank, and due on demand, and payable to the order of the First National Bank."The defeasance clause was as follows: "Now, if I pay or cause to be paid said indebtedness at or before its maturity, then this obligation is to become null and void.But in case said note is not paid at its maturity, then the said First National Bank is hereby fully authorized and empowered to take charge of the property hereinbefore described, and sell the same at public outcry for cash at Iowa Park, in said county and state, after giving notice of the time and place and terms of said sale by posting notice of the sale in three public places in said county."November 2, 1901, and after the mortgage had been duly registered, appellants caused execution in their favor against J. A. Cox to be levied on 171 bushels of the wheat in Cox's granary at Iowa Park.Appellee, as mortgage creditor of Cox, claiming to have been in possession of the wheat at the date of the levy, brought this action for damages, and recovered judgment against appellants for both actual and vindictive damages, from which this appeal is prosecuted.

The first and most important question raised by the assignments of error is whether it was competent for appellee to prove by Cox that there was an "agreement between him and the bank that the mortgage introduced in evidence should cover any future amounts he might become indebted to the bank in buying wheat during the season of 1901," over the objection that appellee could not thus alter the terms of the mortgage by parol to the prejudice of appellants, who had caused levy to be made in ignorance of the parol stipulation, especially as appellee had not pleaded as the foundation of its right a mortgage to secure future indebtedness, but only one to secure a debt owing at the date of the mortgage.It is not very clear from the statement of facts whether this parol agreement was contemporaneous with or subsequent to the making of the mortgage, but it seems to be treated both in the bill of ex ceptions and in appellants' brief as contemporaneous, and we will so treat it.The proposition seems to be well sustained by the authorities that, where a mortgage "recites an existing debt as its consideration, it is no violation of the law of evidence to receive proof that the actual consideration was advances to be afterwards made."Huckaba v. Abbott (Ala.) 6 South. 48;Moses v. Hatfield(S. C.)3 S. E. 538;McAteer v. McAteer(S. C.)9 S....