Houssels v. Coe & Hampton

• Decision Date: 21 June 1913
• Citation: 159 S.W. 864
• Parties: HOUSSELS et al. v. COE & HAMPTON.
• Court: Texas Court of Appeals

159 S.W. 864

HOUSSELS et al. v. COE & HAMPTON.

Court of Civil Appeals of Texas. Amarillo.

June 21, 1913.

Rehearing Denied October 11, 1913.

Appeal from Wilbarger County Court; J. B. Copeland, Judge.

Action by Coe & Hampton against Bismark Houssels and others. Judgment for plaintiffs against defendant Houssels Cotton Company, and it appeals. Affirmed.

J. Shirley Cook and R. S. Houssels, both of Vernon, for appellant. Storey & Warlick, of Vernon, for appellees.

HALL, J.

Appellees instituted this suit in the county court of Wilbarger county against J. D. Sparks, Bismark Houssels, and the Houssels Cotton Company. Plaintiffs alleged that defendant Sparks executed and delivered to them the note sued upon in the sum of $250 and at the same time executed a chattel mortgage upon certain cotton described therein, as follows: "Located in Wilbarger county, Texas, two miles southeast of Vernon, to wit: `My first, second, third, seventh, and eighth bales of my crop of cotton, being produced this present crop, on the lands owned by J. T. Dunson.'" It is further alleged that the appellees Bismark Houssels and the Houssels Cotton Company purchased the five bales covered by the mortgage with notice and converted the same to their own use and benefit. There was a prayer for judgment against Sparks for the amount of the note and for foreclosure of the mortgage lien and for judgment against appellants Houssels and the Houssels Cotton Company for the wrongful conversion of the mortgaged cotton.

The appellants answered by general denial and specially that if they purchased the cotton in suit, which was not admitted but denied, it was purchased upon the open market in the city of Vernon, without notice of appellees' claim, and that they paid full value therefor. The defendant Sparks not having been served with citation, plaintiff dismissed as to him. There was a trial before the court without a jury, and judgment was rendered in favor of defendant Sparks and Bismark Houssels that plaintiff take nothing as to them and in favor of plaintiffs against the Houssels Cotton Company for the sum of $155.79.

The first error assigned by the appellant is that the court erred in rendering judgment against the Houssels Cotton Company, not naming any person or persons composing the firm, and that the judgment is therefore void for the want of a designated defendant. The pleadings do not show whether the Houssels Cotton Company is a partnership or a corporation, but it seems to be admitted in the briefs of the parties that it was a partnership. There is no allegation showing the names of the individuals composing the partnership, and the judgment is against "the Houssells Cotton Company."

The Houssels Cotton Company having filed an answer as such, the judgment is sufficient to support an execution against the firm property; and, in the absence of anything in the record to the contrary, we must presume that service of process was properly had upon some member of the firm. Easterwood v. Burnitt, 126 S. W. 934, and authorities cited.

Appellant's second, fifth, eleventh, twelfth, and thirteenth assignments of error raise the question of the sufficiency of the description of the property in the mortgage as notice to appellants. It is admitted by appellant that the property was situated two miles southeast of Rayland, in Wilbarger county, rather than two miles southeast of Vernon, and was produced upon lands owned by J. T. J. Dunson instead of J. T. Dunson. Appellants insist that the description is insufficient in the first place in that the mortgage does not state whether the first, second, third, seventh, and eighth bales of cotton were the "first," etc., bales matured, picked, ginned, and baled, and that the language furnishes no basis for the identity of the particular cotton covered by the lien. It is said in Penrice v. Cocks, 2 Miss. (1 How.) 227: "Cotton is the staple article of our commerce, and the term `bale' conveys to the mind a distinct idea of a parcel or quantity packed together in a particular form." Under the laws of this state a mortgage given upon an unplanted crop of cotton is valid and is a lien thereon in all subsequent stages, and, if the property mortgaged is described as "bales of cotton," there is a lien upon the mortgagor's potential interest which becomes a lien upon the "bales" when the lint or bulk cotton, after being gathered and ginned, is formed into bales. Our construction of the language of this instrument is that the first, second, third, seventh, and eighth lots of cotton, baled for the defendant Sparks, were subject to the mortgage, whether such lots, matured, were picked or ginned first or last. By appropriate pleadings, the error in the exact location of the cotton as set out in the mortgage was explained and this allegation was followed by the evidence. There was in fact no misdescription of the property mortgaged. Omitting Dunson's third initial was immaterial. Kane v. Sholars, 41 Tex. Civ. App. 154, 90 S. W. 937; McDonald v. Morgan, 27 Tex. 503. The exact location in the county was misstated in naming Vernon instead of Rayland and in describing it to have been upon the land of J. T. Dunson instead of J. T. J. Dunson. It was shown that J. T. Dunson owned no land and that the crop was in...