John E. Morrison Co. v. Riley

• Decision Date: 10 November 1917
• Docket Number: (No. 8731.)
• Citation: 198 S.W. 1031
• Parties: JOHN E. MORRISON CO. v. RILEY et al.
• Court: Texas Court of Appeals

198 S.W. 1031

JOHN E. MORRISON CO. v. RILEY et al.

(No. 8731.)

Court of Civil Appeals of Texas. Ft. Worth.

November 10, 1917.

Appeal from Throckmorton County Court; A. H. King, Judge.

Suit by the John E. Morrison Company, a corporation, against J. J. Riley and others. Judgment for plaintiff in part, and it appeals. Reversed and remanded.

B. F. Reynolds, of Throckmorton, for appellant. T. J. Wright, of Throckmorton, for appellees.

DUNKLIN, J.

The John E. Morrison Company, a private corporation, instituted this suit against J. J. Riley to recover a personal judgment against him upon two promissory notes for the principal sum of $166.04 each, with interest thereon, and also for a foreclosure of a chattel mortgage upon certain personal property, which mortgage was given to secure the payment of the notes. Lev Williams, R. E. Sherrell, Will Sherrell, composing the partnership firm of Sherrell Bros., P. J. Foster and R. Brittain, composing the partnership firm of Throckmorton Mill & Light Company, and the First National Bank of Throckmorton, were all made defendants, and a judgment for foreclosure of the mortgage was prayed for against those defendants, as well as against Riley. It was alleged that the bank was claiming some interest in the property covered by plaintiff's mortgage under and by virtue of another mortgage executed by Riley of later date than plaintiff's mortgage covering a part only of the property covered by plaintiff's mortgage. It was further alleged that defendants Williams, Foster, Brittain, and Sherrell Bros. had all purchased from defendant Riley, subsequently to the execution of plaintiff's mortgage, certain wheat, all of which was covered by that mortgage, and had converted the same to their own use without plaintiff's consent, and judgment was sought against them for foreclosure of plaintiff's lien on the property so converted, or for the value thereof, and for a foreclosure as against the bank. The trial was before a jury, and a personal judgment was rendered in plaintiff's favor against Riley for the debt claimed against him, but denying plaintiff a foreclosure of the mortgage lien alleged as against each and all of the defendants. From that judgment the plaintiff has appealed.

The mortgage given by Riley to plaintiff was dated February 11, 1916, and was filed for record February 14, 1916. It covered certain live stock and also 30 acres of wheat then growing upon the Howsley farm. Prior to the execution of that mortgage, Riley had executed another mortgage in favor of the defendant bank, of date May 13, 1915, which had been filed for record on October 1, 1915, more than four months prior to the execution of the mortgage in plaintiff's favor, but that mortgage in favor of the bank did not cover the wheat crop embraced in plaintiff's mortgage, nor did it cover the mule embraced in plaintiff's mortgage, which was there described as being a one year old mule colt without a brand. On February 15, 1916, one day subsequent to the filing of plaintiff's mortgage for record, Riley executed another mortgage in favor of the bank upon all the property covered by plaintiff's mortgage, as well as that included in the bank's first mortgage, and which was intended as a renewal of the bank's first mortgage, the original debt then being unpaid, and that mortgage was duly filed for record on the same date of its execution. Notwithstanding the fact that it appears from the face of the instruments themselves that the bank's first mortgage did not cover the one year old mule and the 30 acres of wheat, which were embraced in plaintiff's mortgage, Riley was permitted to testify, over plaintiff's objection, that all the property described in plaintiff's mortgage was also covered by the bank's first mortgage, and in answer to special issues the jury found that such were the facts. In this ruling we think there was error. No doubt it was permissible for Riley to testify that the animals described in the two instruments were the same, if there was nothing in the two instruments to show that they were different animals, but the rule allowing him to testify that the 30 acres of wheat and the one year old mule colt described in the plaintiff's mortgage were also embraced in the bank's first mortgage would be to allow him to contradict by parol testimony the plain terms of the two instruments, and by parol testimony to add to the bank's first mortgage property, which clearly appeared from the face of that instrument not to have been covered thereby.

The bank and also Riley both pleaded specially that at the time plaintiff's mortgage was executed and in the negotiations immediately preceding such execution, it was understood and agreed by and between Riley and plaintiff's representative that that mortgage should be secondary and subordinate to the second mortgage which Riley then contemplated giving, and which he gave to the bank four days later. The latter mortgage, which was introduced in evidence, clearly...