Ferguson Seed Farms v. Ferguson

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Ferguson Seed Farms v. Ferguson, 52 S.W.2d 354 (Tex. App. 1932)
• Decision Date: 01 July 1932
• Docket Number: No. 995.,995.
• Parties: FERGUSON SEED FARMS, Inc., v. FERGUSON.

52 S.W.2d 354

FERGUSON SEED FARMS, Inc., v. FERGUSON.

No. 995.

Court of Civil Appeals of Texas. Eastland.

July 1, 1932.

Error from District Court, Haskell County; Clyde Grissom, Judge.

Suit by the Ferguson Seed Farms, Inc., against Joe Lee Ferguson. To review a judgment for defendant, plaintiff brings error.

Reversed and remanded.

W. L. Scott, of Fort Worth, for plaintiff in error.

Murchison & Davis, of Haskell, for defendant in error.

LESLIE, J.

The plaintiff, Ferguson Seed Farms, Inc., sued the defendant, Joe Lee Ferguson, alleging that, at the instance and request of the latter, it sold to him seed, merchandise, etc., and that he agreed to pay for the same as per terms of sale contract, and in the alternative it alleged that, if it be mistaken in its allegations that it sold the same to the defendant, then such were shipped and consigned to the defendant, Joe Lee Ferguson, as its agent, who received and accepted same as such, sold same, collected the proceeds of such sale for the account of the plaintiff, and thereafter failed to account to plaintiff for any part thereof.

The defendant answered by general denial, exceptions, and pleaded limitation. The court sustained a special exception to a part of the pleadings setting forth the cause of action first alleged. The plaintiff refused to amend, and the court struck out the cause of action set forth in the first part of the petition, or that appearing in the first count thereof. The issue of limitation as urged against the alternative plea was heard and sustained by the court; whereupon it dismissed the alternative plea, as well as the plaintiff's suit generally. From this judgment plaintiff appeals. The parties will be referred to as in the trial court.

An assignment, sufficient as a proposition, is addressed to the action of the court in each respect. In the third paragraph of the plaintiff's amended original petition it is alleged: "That on or about May 8th, 1924, said account of the said Ferguson Seed Farms owed it by Joe Lee Ferguson, defendant herein, was sold under a foreclosure sale under a deed of trust, and chattel mortgage thereon, to and became the property of Mrs. Kate F. Morton, deceased, and that on or about the same date the said Kate F. Morton, for a valuable consideration, sold, transferred and delivered said account to this plaintiff, which then and there became the property and assets of the plaintiff."

The defendant excepted to this portion of the pleading, "because it did not state whether or not the transfer * * * was in writing." The court sustained this exception, and, the plaintiff refusing to amend, the court dismissed the cause of action in so far as it was based upon the theory of a sale of the seed to the defendant.

It will be observed that the special exception urges no vice in the pleading by reason of its being indefinite and uncertain, but asserts its insufficiency simply "because it did not state whether or not the transfer * * * was in writing."

Does an allegation of an assignment involving merchandise, etc. (personal property), render such pleading as in the instant case defective? We are of the opinion that it is not defective, either in substance or form.

In Singletary v. Goeman, 58 Tex. Civ. App. 5, 123 S. W. 436, 437, it is said that: "It is a well-settled rule that an assignment of a note or debt can rest in parol, and need not be in writing to be enforceable." In Word v. Elwood, 90 Tex. 130, 37 S. W. 414, 415, the Supreme Court, in considering a question involving the assignment of a negotiable instrument, held: "An instrument is `assigned,' within the meaning of this statute, when it is transferred from one to another. The form of the transfer, and whether written or verbal, is immaterial."

In 5 C. J. p. 900, § 65, the rule is stated: "But it has been stated as a general rule that a valuable equitable assignment of a debt or other chose in action, whether evidenced by writing or not, may be made by parol, and usually it is not important whether an assignment is in writing or by parol."

The text in notes 64 and 65 shows this rule to be almost universal, and that it obtains in Texas is obvious from the great number of Texas authorities cited in these notes.

In the discussion of the assignment of liens in 27 R. C. L. p. 584, § 329, it is said: "In England and in a number of jurisdictions in this country, the implied lien of the vendor is not regarded as purely a personal privilege, but may be assigned by him, and such an assignment may be oral as the lien is not regarded as an interest in land within the meaning of the statute of frauds requiring a transfer of an interest in land to be evidenced by writing."

Such is the rule in Texas. In First State Bank of Windom v. McElwrath (Tex. Civ. App.) 266 S. W. 837, it was held that, if an oral guaranty is made of the payment of a vendor's lien note, transferred for a valuable consideration by delivery only, the promise is not within the statute of frauds. To the same effect is Fry v. Barron, 2 S.W.(2d) 888, by this court.

If such is the legal effect of an assignment of a vendor's lien note, undoubtedly the accounts, etc., involved in this lawsuit could be transferred either by parol or in writing. Certainly accounts, as well as promissory notes, are assignable, and there is no statute prescribing that an assignment like that under consideration must be made in any particular manner. In the absence of such restrictions, no particular mode or form is necessary to effect a valid assignment. 5 C. J. p. 897, § 61.

For these reasons the first assignment is sustained.

As noted, the alternative plea asserted a liability against the defendant on the theory that the goods were consigned to the defendant as agent. To meet this contention, the defendant presented, among other defenses, a plea of limitation. As a fact basis for such plea, the litigants considered certain evidence before the court, namely: "* * * Agreed in open court * * * the court may consider in evidence on this motion the original petition filed herein on October 15th, 1925, of plaintiff, and its first amended original petition filed herein on January 24th, 1928, and its first and second supplemental petitions filed herein on January 4th and 5th, 1928, respectively, as offered in evidence by the defendant in support of said motion, together with the oral agreement of the parties hereto made in open court, and in the presence of the court that the allegations set out in the second count of plaintiff's second amended original petition were never filed in any prior petition or pleading, as introduced herein, and that the allegations as set out in the second count were filed for the first time herein on the 26th day of January, 1931."

The controlling question, therefore, is whether, in the alternative plea, a new and different cause of action was set up. If so, it would be subject to the plea of limitation of two and four years. After a careful consideration of these pleadings and the nature of the cause of action, we conclude that no new and different cause of action was set up. The essential facts declared upon in the original petition were brought forward and declared upon in the last petition, and in each count thereof; the only change being the alternative plea on the theory of consignment and agency. The question appears to have been passed upon in Kirby Lbr. Co. v. C. R. Cummings & Co., 57 Tex. Civ. App. 291, 122 S. W. 273, 274 (writ refused). The nature of the facts and the holding of the court sufficiently appear in a brief extract taken from that opinion: "This suit was brought by appellees to recover damages against appellant...