J. I. Case Threshing Mach. Co. v. Lipper

• Decision Date: 16 December 1915
• Docket Number: (No. 482.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 181 S.W. 236
• Parties: J. I. CASE THRESHING MACH. CO. v. LIPPER.
• Court: Texas Court of Appeals

Page 236

181 S.W. 236

J. I. CASE THRESHING MACH. CO. v. LIPPER.

(No. 482.)^*

Court of Civil Appeals of Texas. El Paso.

December 16, 1915.

Rehearing Denied January 6, 1916.

Appeal from District Court, Harris County; N. G. Kittrell, Special Judge.

Sequestration by the J. I. Case Threshing Machine Company against O. M. Lipper. From a judgment for the defendant, plaintiff appeals. Affirmed.

A. B. Wilson and Cole & Cole, all of Houston, for appellant. Lawrence Sochat, of Houston, for appellee.

HIGGINS, J.

Upon a former day of this term, this appeal was dismissed (179 S. W. 701) for want of finality in the judgment of the court below. By supplemental transcript since filed, it is shown that a final judgment was rendered and has been entered, so the order of dismissal heretofore made is set aside, and the appeal will now be considered upon its merits. J. J. Gorman was engaged in a general automobile business in city of Houston, buying and selling new and secondhand cars. He also let out cars for hire. He was agent for the sale of the Case cars, manufactured by appellant. Appellant placed a big sign in front of his place of business, viz., "Case Automobiles." On June 6, 1913, Gorman gave appellant a written order to ship or deliver to him at Houston six Case cars for which he agreed to pay $9,651, evidenced by notes "secured by proper storage, first mortgage on said automobile," and by lien upon other real and personal property. This order was accepted by appellant and the cars delivered to Gorman. On June 7, 1913, Gorman gave appellant a mortgage in the ordinary form of chattel mortgages covering the purchased cars and other property to secure the payment of the purchase price of the six cars. Among the cars so purchased and mortgaged was a Case "30" No. 19566. Thereafter, Gorman, in the ordinary course of trade, sold and delivered car No. 19566 to A. E. Lundell, who, in turn, sold and delivered same to appellee, Lipper. By its intervention, in this cause, appellant sought recovery of said car or its value. At its instance, a writ of sequestration was issued and the car seized. Upon trial, Lipper recovered a judgment against appellant for the value of the car in sum of $850.

The primary question raised by this appeal relates to the validity of appellant's mortgage upon the car as against Lipper. Article 3970, Revised Statutes, provides:

"Every mortgage, deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of the business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void."

Appellant asserts that under authority of Bowen v. Kansing Wagon Works, 91 Tex. 385, 43 S. W. 872, and other cases following same, the article quoted has no application, because its lien is in the form of a reservation of title to the property until its purchase price is paid. This point is raised by an attack upon the correctness of the trial court's finding that the automobile was sold and delivered without any reservation of title by appellant and its conclusion of law that the mortgage was invalid. The two first assignments relate to this phase of the case, and they are based upon the premise that there was a reservation of title by appellant to secure the payment of the purchase price. This premise is false, as the uncontradicted evidence shows that the cars were sold and delivered to Gorman without any such reservation of title, and the only lien to secure the purchase-money notes is that evidenced by the instrument of June 7, 1913, executed by Gorman in the ordinary form of a chattel mortgage.

The third assignment reads:

"The court erred in rendering a judgment for defendant Lipper for the car in controversy, because there is no evidence that the cars were sold by the J. I. Case Threshing Machine Company to defendant Gorman in contemplation that they would be exposed for sale by defendant Gorman as a dealer in the ordinary course of business, but, on the contrary, the uncontradicted evidence is that the J. I. Case Threshing Machine Company did not know the purpose or object of the purchase of said automobiles by defendant...