Ghio v. Byrne
Decision Date | 16 June 1894 |
Parties | GHIO v. BYRNE et al. |
Court | Arkansas Supreme Court |
Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.
Action by L. A. Byrne, as trustee, and the Gate City National Bank, against A. L. Ghio, for conversion. Judgment for plaintiffs, and defendant appeals. Affirmed.
This is an action by appellees against the appellant, instituted in the Miller circuit court on the 18th day of November, 1890, in which the plaintiffs claim damages against defendant for the unlawful taking and conversion of certain personal property named in the complaint, alleged to be of the value of $5,000, and for which sum they ask judgment. One Ernest Zucchini, a saloon keeper in the city of Texarkana, Tex., being indebted to the plaintiff, the Gate City National Bank, in the sum of $1,181.59, as evidenced by his promissory note, to secure the payment of the same, executed, acknowledged, and delivered his certain deed of trust to plaintiff L. A. Byrne as trustee, wherein, for that purpose, he sold and conveyed to said trustee the following property, to wit: "His entire bar and saloon fixtures and outfit, located in the Ghio corner building, on Broad and State streets, in Texarkana, Tex., consisting mainly of the following items: All the bar and lunch counters, looking glasses, billiard and pool tables, all glass and bar ware, all office chairs, all gas fixtures, tables, iron safe, cooking apparatus, and all property of every character or kind in said building; also all his entire stock of wines, whiskies, brandies, and all other spirits located in said building." It was provided in said deed of trust that, upon the execution and delivery of the same, the possession of all of the said property was to be absolutely given to said trustee by said Zucchini for the purpose aforesaid, Zucchini being then in possession of the same. It was further provided in said deed of trust that "the said Ernest Zucchini is by the said L. A. Byrne appointed as special agent, and for the following purposes only: that is, he shall be permitted to make sales of the stock of goods above set forth, and conduct the daily sales thereof, but with the express and unqualified understanding that all daily receipts arising from said business shall be by said Zucchini deposited in the Gate City Bank of Texarkana, Tex., for the satisfaction of the debt and obligation hereinafter set forth; and this condition shall be strictly pursued, without regard to the maturity of the debt, until the same is fully satisfied." In other respects this deed of trust is substantially as such instruments of writing usually are. This deed of trust was immediately delivered by Byrne to the recorder for registration, and was filed and recorded, and the original returned to Byrne, who sent back at once to the recorder, calling his attention to the error in the manner of registration, when the error was corrected, and the instrument properly registered. The defendant, in his answer, disclaims all knowledge of the execution and delivery of plaintiff's said deed of trust and note; denies that plaintiff trustee took possession as alleged in his complaint, or that the property was delivered to him or his co-plaintiff by said Zucchini, for the purposes of said trust, or for any other purpose. He denies that he took possession without right. Defendant alleges that the property was and continued to be in Bowie county, Tex.; and that the same consisted of a stock of goods, wares, and merchandise; and that the same continued to be exposed to daily sale in course of business by the mortgagor, the said Zucchini, who was then a resident of Bowie county, Tex., and was in active and exclusive possession and control of said business for his own use and benefit; and that on the 5th day of November, 1890, Zucchini, for a valuable consideration, sold, conveyed, and delivered to defendant all of said property and put him (defendant) in possession of same; and that he has since owned the same; that the consideration of said sale and purchase was the payment of a valid and substantial indebtedness due from Zucchini to defendant, exceeding in amount the value of said property. Defendant further alleges that the laws of the state of Texas provide as follows (Sayles' Civ. St. art. 3190b):
And the defendant alleges that none of the requirements of said laws have ever been complied with, and therefore said deed of trust was and is absolutely void as against this defendant. Defendant further alleges that the laws of Texas provide as follows, to wit: The case was tried by the court, sitting as a jury, upon the deed of trust and note and evidence of witnesses on the part of plaintiffs, and the bill of sale and evidence of witnesses on the part of defendant, and upon the agreement that the property was worth $5,000. The bill of sale from E. Zucchini to A. L. Ghio is in words and figures following: The possession of Byrne consisted in the stipulation in the deed of trust, and the immediate delivery to him by Zucchini of one of the front-door keys, — the only one had at the time, — and an effort to procure the others from clerks and other employés who happened to be away at the time, the house having been closed on account of a pending election. Byrne had directed the bookkeeper of the bank, Mr. John Ownly, to go to the saloon morning and evening, and receive the proceeds of the sales of the night and day previously, which he did in the morning of the 5th November, and inquired for the night clerk, but found that he was not on watch. He returned that evening, and found defendant Ghio in possession. On that day the saloon had been open and business transacted as usual, and the...
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