Farmers' Nat. Bank v. Dublin Nat. Bank, 969.

• Citation: 55 S.W.2d 567
• Decision Date: 07 October 1932
• Docket Number: No. 969.,969.
• Parties: FARMERS' NAT. BANK et al. v. DUBLIN NAT. BANK et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

Page 567

55 S.W.2d 567

FARMERS' NAT. BANK et al. v. DUBLIN NAT. BANK et al.^*

No. 969.

Court of Civil Appeals of Texas. Eastland.

October 7, 1932.

Rehearing Denied December 16, 1932.

Appeal from District Court, Erath County; Sam M. Russell, Judge.

Suit by the Dublin National Bank against R. H. Stephens and others, wherein the Breedlove Livestock Commission Company, a partnership, and the individual members composing it and W. W. and Bart Oats filed separate cross-actions against the Farmers' National Bank. From judgment rendered, the Farmers' National Bank and the Breedlove Livestock Commission Company and the individual partners composing it appeal.

Affirmed in part, and reversed and rendered in part.

Bryan, Stone, Wade & Agerton, of Fort Worth, and R. L. Thompson, of Stephenville, for appellants.

Fred C. Chandler and Chandler & Keith, all of Stephenville, Arthur R. Eidson, of Hamilton, and J. A. Johnson, of Stephenville, for appellees.

FUNDERBURK, J.

Originally this suit was brought by the Dublin National Bank (hereinafter called the Dublin National) against R. H. Stephens upon a promissory note for the principal sum of $5,533.15, and for foreclosure of a chattel mortgage lien upon certain cattle. W. W. and Bart Oats (hereinafter referred to as the Oats) were also made defendants, and damages claimed against them in the sum of $3,245 for an alleged conversion of 76 head of the mortgaged cattle. By a first amended original petition the plaintiff brought in the Farmers' National Bank of Dublin (hereinafter referred to as the Farmers' National) and Mack Morgan, sheriff of Hamilton county. The Farmers' National was joined because it claimed a mortgage on the same property and there was also asserted against it a claim for damages on the ground that it had participated in the conversion of a portion of the cattle. Injunction was sought against the Oats to restrain further prosecution of a suit which they had instituted in Hamilton county against the Dublin National, the Farmers' National, and said Mack Morgan, sheriff, claiming a wrongful sequestration of part of the cattle by the Dublin National. In its third amended original petition plaintiff brought in as other parties defendant Breedlove Livestock Commission Company, a partnership, and the individual members composing it (which Breedlove Livestock Commission Company, including the individual members, will hereinafter be referred to as the commission company), and besides amplifying the former allegations, charged a joint conversion by defendants R. H. Stephens, the commission company, and the Farmers' National of 56 calves covered by its mortgage, and which calves were sold by the commission company in Fort Worth, Tex., about January 8, 1930.

The commission company filed a plea of privilege, which was duly controverted by plaintiff on the ground that the Farmers' National, a resident defendant in the county of the suit, was a joint conversioner with said commission company. Subject to that plea it further answered, among other things, that R. H. Stephens, the mortgagor, sold the cattle with the consent, express or implied, of plaintiff, thereby waiving its lien, if any there was. In the alternative, by way of cross-action against the Farmers' National, it alleged facts to show a mutual mistake in the payment to the latter and acceptance by it of the proceeds of sale of said 56 calves, or that R. H. Stephens was the agent of said bank, or that the bank had fraudulently accepted such proceeds, by reason whereof the amount of the payment was claimed as for money had and received.

The Oats answered, claiming the cattle which plaintiff had sequestered, but in the alternative and by way of cross-action against the Farmers' National, claiming damages in the amount of $2,000, the purchase price of the cattle paid to said bank upon its representations and statement to them that it held a mortgage on said cattle, when in fact the plaintiff held the mortgage.

The Farmers' National answered, first, by a plea in abatement, because of the pendency of the Hamilton county suit against it by the Oats (i. e., the suit which the plaintiff herein sought to enjoin). Subject to its said plea in abatement, it claimed as against the plaintiff that the latter had no mortgage lien on any of the cattle; that said defendant did have a valid mortgage, and, in any event, that the mortgage of said defendant was superior to that claimed by the plaintiff. For further answer it adopted, by reference, the allegations of its answer to the cross-action of the Oats. In reply to the cross-action of the Oats it alleged that the Oats' cause of action, if any, was against plaintiff for a number of reasons, namely: (1) Because the latter had no valid lien; (2) because it had consented for Stephens, the mortgagor, to sell the cattle, and had ratified several sales by him over a period of years, wherefore the lien was waived and plaintiff estopped to assert same; (3) that the cattle were not included in plaintiff's mortgage; (4) that the Oats were negligent in not ascertaining the existence of plaintiff's mortgage, wherefore the payment of the $2,000 purchase price for the cattle to it was voluntary and induced by no false representations.

The plea in abatement of the Farmers' National was overruled and exception taken. A motion for continuance of the Farmers' National, on the ground that it had not been cited to answer the cross-action of the commission company and had not waived service of citation nor entered its appearance to same, so as to require it to answer ready for trial at that time, was likewise overruled and due exception taken to such action. By agreement of all parties the plea of privilege of the commission company was tried with the main case.

The jury to whom the issues of fact were submitted found: (1) That 56 calves sold by the commission company on January 8, 1930, were included in plaintiff's mortgage dated October 21, 1929; (2) that the 37 cows, 37 calves, and one bull sold by R. H. Stephens on September 5, 1930, to the Oats, were included in said mortgage, the debt secured being for the original purchase price of said cattle; (3) that neither the said 56 calves, nor (4) the 37 cows, 37 calves, and one bull were covered by any mortgage of the Farmers' National; (5) that Joe Little for the Farmers' National participated in the sale of the cattle on September 5, 1930, to the Oats; and (6) that he participated in the sale of January 8, 1930, by the commission company; (7) that E. W. Harris, president of the plaintiff bank, did not consent (expressly or impliedly) to the sale of cattle to the Oats, nor (8) the sale of the 56 calves by the commission company; (9) that said R. H. Stephens, in the sale of the 56 calves, was not acting as agent of the Farmers' National; (10) and (11) that the sale price of the 56 calves and of the 37 cows and 37 calves and one bull was the fair market value of same; (12) that Joe Little, cashier of the Farmers' National, stated to Bart Oats that his bank had a mortgage on the cattle the latter was proposing to buy, and that it was agreeable with said bank for Oats to purchase cattle from Stephens, provided the consideration of $2,000 was paid to said bank; (13) that by reason of such statement, the Oats were induced to pay the consideration of $2,000 to said bank; and (14) that the description of the cattle in plaintiff's mortgage was sufficient to enable one to locate and recognize the cattle by aid of inquiry based on what the mortgage itself indicated.

The judgment of the court recites an election of the plaintiff "to foreclose its mortgage and mortgage lien upon all of the cattle which it now has in its possession, by virtue of the levy of the writ of sequestration herein, and for its damages for the conversion of all the other cattle covered by its mortgage and mortgages." It was adjudged that plaintiff recover of R. H. Stephens the principal, interest, and attorneys' fees on the note, together with a foreclosure against all the defendants of the mortgage lien on 37 cows, 25 calves, and one bull, with order of sale, etc.; that plaintiff recover of the Farmers' National, the Oats, and R. H. Stephens, jointly and severally, the market value of 13 head of calves "sold by the defendant Oats, since said calves were acquired by them, which amount is the sum of $247.00," with interest, etc. That plaintiff recover of R. H. Stephens, the Farmers' National, and the commission company, $2,333, with interest, costs, etc.; that the commission company recover over against Farmers' National the said sum of $2,333, if the former was required to pay it; that the Oats recover upon their cross-action against the Farmers' National the sum of $2,000 with costs, etc., provided the Oats pay to plaintiff bank the said sum of $247. The judgment also permanently enjoined the prosecution of the Hamilton county suit, decreeing that all matters in said suit as to all parties were litigated in the instant suit.

The Farmers' National and the commission company have appealed. The Oats did not appeal, but have elected, as appellees, to stand upon their judgment on their cross-action against the Farmers' National.

So many propositions and counter propositions of such complicated nature are urged that we shall not undertake to state and discuss each of them separately.

The action of the court in overruling the plea of privilege of the commission company we think was correct. The jury found that the Farmers' National, a resident of Erath county, participated in a conversion of the mortgaged cattle, along with R. H. Stephens. We have concluded that the evidence did show a joint conversion by the Farmers' National and the nonresident parties charged with the conversion of the 56 calves. We omit further discussion of the matter here, as it will be taken up later.

The Farmers' National was not prejudiced by the overruling of its plea in abatement. In the Hamilton...