Hall v. Ellwood

• Decision Date: 25 November 1930
• Docket Number: No. 10723.,10723.
• Citation: 34 S.W.2d 892
• Parties: HALL v. ELLWOOD.
• Court: Texas Court of Appeals

34 S.W.2d 892

HALL v. ELLWOOD.

No. 10723.

Court of Civil Appeals of Texas. Dallas.

November 25, 1930.

Rehearing Denied January 3, 1931.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by Vernor Hall, assignee of G. N. Stevens and another, against J. D. Ellwood, wherein the Boedeker Manufacturing Company was brought in as a party defendant. From the judgment rendered, plaintiff appeals.

Reversed and remanded in part.

Carter & Berwald, of Dallas, for appellant.

House & Wilson, of Dallas, for appellee.

VAUGHAN, J.

This appeal is before us without a statement of facts; hence the following lengthy statement from the transcript of the record was made necessary in order to determine whether or not reversible error, as urged by appellant, appears as a matter of law upon the face of the record.

Appellant, Hall, assignee of G. N. Stevens and R. B. Clark, filed this suit against appellee, Ellwood, on May 29, 1929, on six certain promissory notes alleged to have been executed by appellee on February 2, 1927, payable to appellant's order; five of said notes being for the principal sum of $90 each, payable respectively on the 1st day of May, June, July, August, and September, and one for $40 payable November 1, 1928, with interest from date until paid at the rate of 8 per cent. per annum, and providing for the payment of 10 per cent. attorney's fee if not paid when due and placed in the hands of an attorney for collection. It is further alleged that said notes were executed in part payment for all of the stock and fixtures known as the Henderson Avenue Pharmacy, situated in that certain building known as 2535 North Henderson avenue, city of Dallas, Tex., that said notes are past due and unpaid, and defendant, though often requested, had failed and refused to pay same or any part thereof, to plaintiff's damage in the whole amount due thereon in principal, interest, and attorney's fee, which sum amounted to $592.20 on May 2, 1928.

Appellee answered that appellant sold and conveyed to him, by written transfer, all of the stock and fixtures of the Henderson Avenue Pharmacy in the city of Dallas for $2,250, of which $950 was paid in cash for the stock of merchandise, and the balance was represented by notes given for the fixtures and the appellant warranted title to said property; that appellee was notified before May 1, 1928, by Boedeker Manufacturing Company, that it was the owner of the Frigidaire ice cream cabinet located at said place of business; that appellee had purchased said cabinet from appellant at said sale, and appellant warranted the title to same, which cabinet was of the reasonable value of $500; that he notified appellant that he was ready to pay the balance of the purchase price of said property upon appellant furnishing him good title to all of said property; that appellant failed and refused to deliver to appellee good title to said cabinet, and claimed the same belonged to Boedeker Manufacturing Company and failed and refused to accept the balance of the purchase price for said property, less the actual value of said cabinet, and informed appellee that he would not furnish good title to said cabinet and would not accept less than the full amount of said notes; that in truth appellant did not have title to said cabinet, but same was claimed by Boedeker Manufacturing Company; that appellee was not due appellant any sum whatever. Appellee thereupon set up the claim of Boedeker Manufacturing Company to said cabinet and alleged that it was a necessary and proper party to the suit in order that the title to and right of appellant to convey said property to appellee be determined; that the consideration for the execution of said notes had partially failed, in that same were executed in payment of said cabinet. Appellee prayed that Boedeker Manufacturing Company be made a party defendant and for judgment that appellant take nothing against appellee, Ellwood, and for costs.

Boedeker Manufacturing Company answered that it was the owner of the ice cream cabinet in question, and that appellee owed it certain sums for ice cream sold to him, for electric current furnished to operate said cabinet, and as rentals on said cabinet, for all of which it sought judgment.

Appellee, Ellwood, by supplemental petition, replied to the answer of Boedeker Manufacturing Company, setting up matters that related to the controversy between them, which are not involved in this appeal. At the conclusion of the allegations, in reply to Boedeker Manufacturing Company's answer, appellee, Ellwood, in the alternative, in the event it should be determined that he was due said Boedeker Company the sums alleged, prayed for judgment against appellant "on his warranty" of title to said cabinet for a like sum and "for the value of said cabinet."

The case was tried to a jury, one issue being submitted; the issue and answer being to the effect that appellant sold the ice cream cabinet in question to appellee, Ellwood.

Upon this issue and answer, the court rendered judgment in favor of appellant against appellee, Ellwood, for the amount sued for, less "a credit of $448.11, the value of said Frigidaire six-hole ice cream cabinet on February 2, 1927," sold as a part of the assets of said business, which sum was credited upon the principal of said notes. The judgment awarded the cabinet to Boedeker Manufacturing Company, and also $58.25 rentals, as against appellee, Ellwood, and provided that said company take nothing on its cross-action against appellant, and did not award court costs to appellant, against appellee, Ellwood. On the other hand, it awards costs in favor of Boedeker Manufacturing Company against appellant jointly with appellee, Ellwood.

The following propositions presented by appellant in support of his appeal are properly before us for consideration; same being based upon and supported by grounds for a new trial duly presented by appellant to and ruled upon by the trial court:

"No. 2. The measure of damages for breach of warranty of title is the price paid for the property, the title to which failed, with interest, so the defendant's answer, setting up a breach of warranty of title to the cabinet in question and seeking damages by way of a credit on the purchase money notes sued on, not alleging the amount of the purchase price of said cabinet, does not support the allowance of credit in the judgment or authorize any deduction from the amount sued for."

"No. 4. This suit being defended on the ground of breach of warranty of title to the cabinet in question and partial failure of consideration because of such...