General Motors Acceptance Corporation v. Boddeker

• Decision Date: 25 June 1925
• Docket Number: (No. 8704.)
• Citation: 274 S.W. 1016
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION v. BODDEKER.
• Court: Texas Court of Appeals

274 S.W. 1016

GENERAL MOTORS ACCEPTANCE CORPORATION v. BODDEKER.

(No. 8704.)

Court of Civil Appeals of Texas. Galveston.

June 25, 1925.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Suit by the Galveston Auto Sales Company against the Day-Barr Motor Company, in which the General Motors Acceptance Corporation became a party, as did L. E. Boddeker, as intervener; the Galveston Auto Sales Company subsequently being dismissed from the suit. Judgment for intervener, and General Motors Acceptance Corporation appeals. Affirmed.

Thomas, Frank, Milam & Touchstone, of Dallas, and H. H. Treaccar and D. J. Wilson, both of Galveston, for appellant.

C. G. Dibrell and McDonald & Wayman, all of Galveston, for appellee.

GRAVES, J.

With only slight interlineation, this statement from appellee's brief is quoted as correctly reflecting the status of this cause as it comes here:

"On August 9, 1922, Day-Barr Motor Company, retail dealers in automobiles, took up a draft with bill of lading attached, covering amongst others the automobile in question. This bill of lading was sent by General Motors Acceptance Corporation, appellant, to Hutchings, Sealy & Co., bankers, for delivery upon the payment of the draft, covering only a part of the purchase price, and the execution of a note and trust receipt, so called, to be held by the bank for collection. It was contemplated that as each car was sold payments would be made to the bank and the car released from the trust receipt. The trust receipt appears in the statement of facts. On the same day Boddeker, appellee, loaned to Day-Barr Motor Company, $1,500 to take up the bill of lading covering the car in question and two others. Day-Barr Motor Company contemporaneously gave Boddeker also a trust receipt, and in addition a combined note and pledge contract or mortgage; the purpose of the instruments being to vest the title of the cars in Boddeker until they repaid the loan. Boddeker thought at the time that he had the only claim on these cars, and did not know of appellant's trust receipt until the cars were seized in December, 1922.

"It was contemplated by all parties at the time the cars were delivered to Day-Barr Motor Company on August 9, 1922, that they would, as retail dealers in automobiles and accessories, immediately expose them to daily sale at retail as part of their stock of merchandise, and they did so. Two of the cars covered by Boddeker's papers were sold, and the proceeds misappropriated. Appellant did not file its trust receipt for record, but Boddeker filed his pledge contract or mortgage on November 28, 1922.

"On December 6, 1922, Galveston Auto Sales Company sued Day-Barr Motor Company on a rent claim in a justice court and issued a distress warrant, under which the automobile in question, with others, was seized. On December 9, 1922, General Motors Acceptance Corporation presented the constable with a claimant's oath and bond under the statutes covering `trial of right of property.' Because of the amount involved, the proceeding was then filed in the district court on December 18, 1922. The automobile in question was sold, and the proceeds deposited in the registry of the court; the fund constituting the subject-matter of this suit. Galveston Auto Sales Company was dismissed from the suit.

"Day-Barr Motor Company was adjudged bankrupt by the United States District Court at Galveston, on December 14, 1922, but the record does not show whether on a voluntary or involuntary petition. They had evidently been insolvent for some time, as their attorney, Mr. John T. Wheeler said: `The Day-Barr Motor bankruptcy matter was quite a complicated transaction, which was precipitated by the filing of the distress warrant by Mr. Jockusch. They were indebted to a great many people; they had conducted their business in a loose manner, and I was very much disturbed for fear of criminal prosecution.' Mr. Boddeker, the attorney representing appellant, had beaten intervener Boddeker to the seizure of the car in question `by about 15 minutes.' Boddeker filed his claim in the bankruptcy court, and there acquired all of the right, title, and interest of the estate of Day-Barr Motor Company in and to the car at the agreed value of $500, which was credited on his claim.

"Appellant in its pleading claimed the proceeds of the cars under its trust receipt. Boddeker, intervener, claimed under the papers mentioned above, and also set up the right, title, and interest in the car that he acquired from T. J. Holbrook as trustee in bankruptcy of Day-Barr Motor Company. In a supplemental pleading Boddeker alleged that appellant's `trust receipt' was void, because an attempt to create a lien on a stock of merchandise daily exposed to sale, contrary to R. S. art. 3970. The trial court gave judgment in favor of Boddeker."

The contentions of appellant for reversal are also satisfactorily answered by the appellee, and we take the liberty of adopting this much of his argument in reply as expressive of our own conclusions:

"Appellant's propositions are the assignments of error. The first is that there was error in overruling a general demurrer to intervener's petition. There is nothing in the record to show that the general demurrer was ever called to the trial court's attention, or any action taken thereon. The second assignment questions the action of the trial...