Gardner v. Associates Inv. Co., 5528.

• Decision Date: 22 March 1943
• Docket Number: No. 5528.,5528.
• Citation: 171 S.W.2d 381
• Parties: GARDNER v. ASSOCIATES INV. CO.
• Court: Texas Court of Appeals

Page 381

171 S.W.2d 381

GARDNER v.ASSOCIATES INV. CO.

No. 5528.

Court of Civil Appeals of Texas. Amarillo.

March 22, 1943.

Rehearing Denied May 24, 1943.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Suit by M. L. Gardner against Associates Investment Company for title and possession of an automobile and for damages for detention of the automobile by defendant.Defendant filed a cross-action seeking possession of the automobile and judgment upon a note alleged to have been executed as part of the purchase price of the automobile, together with foreclosure of the mortgage lien thereon.Judgment for defendant, and plaintiff appeals.

Judgment reformed and, as reformed, judgment affirmed.

Cofer & Cofer, of Austin, for appellant.

Everett L. Looney and Looney & Clark, all of Austin, for appellee.

FOLLEY, Justice.

The appellant, M. L. Gardner, filed this suit against the appellee, Associates Investment Company, for the title and possession of an automobile alleged to have been of the reasonable market value of $1,500 and for damages alleged to have been suffered by reason of the detention of such automobile by appellee.

The automobile was sold to appellant by the Roundtree Motor Company of Houston and appellant executed his note in the sum of $883.68, payable in 24 instalments of $36.82 each, and secured such note by a chattel mortgage on the automobile.Such mortgage provided that if the mortgagor failed to pay the instalments as provided in the contract, or if the mortgagee felt insecure, such mortgagee might take possession of the automobile without notice or demand and with or without process of law.The note and mortgage were duly transferred to appellee for a valuable consideration.Upon default in the payment of such note, appellee took possession of the automobile while it stood near appellant's place of business in Austin, which act precipitated the filing of this suit.

Appellant alleged that appellee had unlawfully taken possession of his automobile and deprived him of the use of it.He also charged appellee with the collection of usurious interest in connection with the loan upon the automobile and sought recovery of double the amount of interest paid.He caused a writ of sequestration to be issued and thereafter replevied the automobile.

Appellee answered and filed a cross action against appellant and his son, Bert Gardner, the latter having executed the note and mortgage with appellant.Appellee sought possession of the automobile and judgment upon the note alleged to have been executed by the Gardners as a part of the purchase price of the automobile, together with foreclosure of the mortgage lien thereon.Appellee alleged that appellant had purchased the automobile from the Roundtree Motor Company and together with his son had executed his purchase money note therefor, which note had been duly transferred to appellee for a valuable consideration.It also alleged that because of appellant's delinquency in his payments it felt itself insecure and had repossessed the automobile under the power given to it in the chattel mortgage.

The trial was before a jury which found that appellee had reason to, and did, feel insecure in the payment of its note; that it repossessed the automobile because it felt insecure; that in doing so, it acted in good faith; that it did not act maliciously, wantonly, or without probable cause; that there was no scheme or device entered into between the Roundtree Motor Company and appellee to collect usury; that the value of the automobile was $275; that the value of the use of the automobile while detained by appellee was $100; and that appellant was not entitled to exemplary damages.The court rendered judgment that appellant take nothing, that appellee recover from appellant the title and possession of the automobile and that it recover of M. L. Gardner and Bert Gardner the sum of $431.90, of which $331.18 was principal, $44.19 was interest, and $56.33 was attorney's fees.In addition, the court decreed a foreclosure of appellee's lien upon the automobile and directed that order of sale issue.

Appellant asserts that the court erred in entertaining appellee's cross action after appellee had exercised and invoked the inconsistent remedy of proceeding out of court and seizing the automobile under its power of sale.He also asserts that the court erred in decreeing title and possession of the automobile in the appellee, thereby depriving appellant of his equity of redemption, and urges that this portion of the judgment is repugnant and inconsistent with the judgment for debt and foreclosure.None of these points was presented in appellant's motion for a new trial, but he insists that they constitute fundamental error.

Appellant, in our judgment, is not in a very good position to assert that appellee was barred from seeking judgment for debt and foreclosure after appellee had repossessed the automobile out of court under its power of sale in the mortgage.Appellant filed this suit and reinvested himself with the possession of the automobile by sequestration and replevin while appellee was about to sell the automobile under its mortgage, and such suit had the effect of preventing appellee from pursuing the remedy it first elected to pursue.In such case appellee manifestly had the right in this suit to avail itself of the remedy of foreclosure through the court.Pickard v. Reed, Tex.Civ.App., 52 S.W.2d 274, writ refused.However, we are of the further opinion that the court was unauthorized to render judgment in appellee's favor for the title and possession of the automobile, and such relief together with the judgment for debt and foreclosure presents fundamental error.Golden West Oil Co. No. 1 v. Golden Rod Oil Co. No. 1, Tex.Civ.App., 285 S.W. 627, affirmed, Tex.Com.App., 293 S.W. 167.While the mortgage provided that the title to...