Higgins v. Mossler Acceptance Co.

• Citation: 140 S.W.2d 532
• Decision Date: 25 April 1940
• Docket Number: No. 10967.,10967.
• Parties: HIGGINS v. MOSSLER ACCEPTANCE CO.
• Court: Texas Court of Appeals

Page 532

140 S.W.2d 532

HIGGINS v. MOSSLER ACCEPTANCE CO.

No. 10967.

Court of Civil Appeals of Texas. Galveston.

April 25, 1940.

Rehearing Denied May 30, 1940.

Appeal from Harris County Court; William M. Holland, Judge.

Action by E. N. Higgins against the Mossler Acceptance Company to recover double the amount of usurious interest alleged to have been paid by plaintiff to defendant in connection with the purchase of an automobile, and for other relief. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

John B. Warren, of Houston, for appellant.

Gammage, Gammage & Bauer and Earl W. Gammage, all of Houston, for appellee.

GRAVES, Justice.

This general statement, adopted by the appellee, as qualified by "explanatory and supplementary statements in clarification thereof", is taken from the appellant's brief: "This is a suit by the appellant against the Mossler Acceptance Company to recover double the amount of usurious interest alleged to have been paid by the appellant to the appellee in the aggregate sum of $437.36, less the sum of $40.16, the balance due on the principal sum borrowed from the appellee with which to purchase an automobile from the Harlan Hodges Motor Company, and further to recover the sum of $400.00 as damages for wrongfully taking from the appellant the automobile so purchased, with interest at six per cent per annum from October 26, 1938, and a cancellation of the note and chattel mortgage given by the appellant and owned by the appellee. The suit was tried in the court below without a jury, and at the conclusion of the appellant's evidence in chief, the appellee moved the court to render judgment for the appellee upon the evidence of the appellant, which motion the court granted, and accordingly rendered judgment. To all of which the appellant excepted and in open court gave notice of appeal to the Court of Civil Appeals of the First Judicial District of Texas at Galveston. At the same time, appellant requested the trial court to file conclusions of fact and law, which was done."

The appellee's supplementary statements are to this effect, in substance: That appellant alleged the terms of the $898.20 note he signed for the balance of the purchase-price of the automobile he bought from Hodges, which was payable in 30 monthly installments of $29.94 each, attaching also to his trial petition a copy of the chattel mortgage securing the note which he gave to the Hodges Motor Company, and which was thereafter assigned to the appellee. Then follows this statement:

"Appellant, however, wholly failed to allege in his pleading that he agreed with appellee to attempt to circumvent the usury laws of Texas, and that pursuant thereto, the note and chattel mortgage filled out in the manner pleaded was done under an agreement, device, scheme, subterfuge and conspiracy to violate the Texas usury laws, although the note and mortgage pleaded by appellant on their face provided for legal interest.

"The chattel mortgage pleaded by appellant Higgins provided, among other things, the following:

"`That E. N. Higgins of the City of Houston, in the County of Harris, and state of Texas (hereinafter termed Mortgagor) in consideration of $898.20 balance of purchase money due to Harlan Hodges Motor Company * * *.'"

It next adds a further assertion, in purport, that the trial court did not sustain appellee's motion to render judgment for it at the conclusion of appellant's evidence, as his copied statement recites, but instead, that it first heard the testimony of two of appellee's witnesses before entering such judgment.

The trial court's judgment itself contains this recitation: "* * * and plaintiff having presented his evidence in chief, and having announced that he rested, then came the attorneys for the defendant and made an oral motion that plaintiff take nothing by his suit, and that judgment be rendered for the defendant, and the Court, having heard such motion and the argument thereon, is of the opinion that said motion should be sustained, and it is hereby sustained."

The quoted provision in the judgment itself is nowhere impeached in the transcript, hence it is deemed to be binding upon this court, notwithstanding the appellee's assertion that two of its witnesses were first heard; even were they provisionally heard, just as it claims, there appears no showing whatever that it offered their testimony, or any other, in its own behalf; rather does it appear—presumptively at least—that it was content to have the judgment entered on its own motion and conclusion that appellant had made out no case against it. At all events, it was entered without a trial of the whole case, but for one side only.

So that, in this state of the record, this court concludes that the rule applied in Donaldson v. Oak Park Cemetery, Tex.Civ. App., 110 S.W.2d 119, is applicable here, and that this cause should be reversed, if it be found that appellant's evidence raised any material issue of fact in support of his declared-upon cause of action.

The substance of the learned trial court's findings of both fact and law was that the evidence wholly failed to show what amount of interest was either added into the principal of the note plaintiff executed, or was paid by him thereon to the defendant.

The appellant has failed to present here any assignments of error against the denial of his claim below for damages for conversion of the automobile involved, hence that feature of the controversy is not before this court.

It is thought the appellee (whose present attorney did not try the cause below), as presaged in his "supplementary statements", supra, has mistaken the essential nature of this suit as brought by the appellant, together with the probative effect, in part at least, of the testimony he offered in support thereof; as so declared upon and sought to be proven, this was not such a case as many of the authorities appellee relies upon dealt with, that is, one where an assignee of a note and mortgage securing it, like those here involved, becomes such as an innocent purchaser of such obligations already executed between the original parties thereto; on the contrary, in this instance, by the specific pleadings as well as his entire evidence offered as in support thereof, this appellant declared in effect upon a tripartite or single-transaction contract between himself, as the purchaser of the automobile, Harlan Hodges, doing business as the Harlan Hodges Motor Company, the seller of it, and Jacques Mossler, doing business as Mossler Acceptance Company, as the lender to appellant of the money necessary to finance such sale and purchase between the other two, all three participating in the enterprise evidenced by the note, the chattel mortgage securing it, and the assignments of both to Mossler, as original principals; indeed, both such pleadings and proof set out that all three parts of the deal—that is, the note, the chattel mortgage, and the assignments thereof—had, as component parts of such resulting transaction, been originally drawn and executed in Mossler's office; in other words, the gist of the whole contract, as thus alleged and testified to by the appellant and his witnesses, is reflected in these portions of his trial petition:

"The purchase price for said new automobile was * * * $877.00, of which * * * plaintiff paid to the said Motor Company $277.00 by delivering to it an used automobile, then owned by plaintiff, at an agreed price of $277.00,...