Loftus v. King

• Decision Date: 08 March 1900
• Citation: 56 S.W. 109
• Parties: LOFTUS v. KING.
• Court: Texas Court of Appeals

56 S.W. 109

LOFTUS v. KING.

Court of Civil Appeals of Texas.

March 8, 1900.

Appeal from Harris county court; E. H. Vasmer, Judge.

Action by T. F. Loftus against E. King. Judgment for defendant. Plaintiff appeals. Reversed.

Fisher, Sears & Sherwood, for appellant.

GARRETT, C. J.

The appellant brought suit in justice's court precinct No. 1 of Harris county against the appellee for recovery upon an account for household furniture, and to foreclose a chattel mortgage thereon. Citation issued July 21, 1899. The statement of the cause of action on the justice's docket showed that appellant sued for the sum of $133.25 balance due, and for the foreclosure of a chattel mortgage on certain household furniture, which was described. On the same day that citation issued the appellant filed a sworn statement in the justice's court to the effect that he was the legal owner and holder of a certain mortgage lien executed by the appellee to the W. C. Archer Furniture Company, executed on or about April 12, 1899, on certain personal property, describing the furniture, to secure the payment of $191.25; that the mortgage was just, valid, and subsisting for the sum of $133.25, and had been due since July 1, 1899. Foreclosure was prayed for. The appellee filed a written answer, in which he pleaded under oath, in abatement, the appellant's right to recover in the capacity in which he sued, and non est factum as to the mortgage. There was a trial before the justice of the peace, and appellant recovered judgment. In the county court the appellant filed an amended petition, in which he sought to recover on two counts: (1) For the reasonable value of the goods sold to the appellee by the W. C. Archer Furniture Company, which was alleged to be $150.60; and (2) for an agreed price of $150.60, and the foreclosure of the chattel mortgage. He also pleaded an assignment of the account and chattel mortgage to himself by the W. C. Archer Furniture Company. A copy of the mortgage was set out in the petition. The instrument set out in the petition, and styled therein a "conditional contract of sale" was executed by the appellee, E. King, on April 12, 1899, to the W. C. Archer Furniture Company. It is substantially an acknowledgment by the appellee of the sale to him of the furniture by the company for the sum of $150.60, on account of which he had paid $10, and agreed to pay $10 on the 12th day of each month thereafter until the entire purchase price should be fully paid, agreeing, also, that the title to the property should fully vest and remain with the furniture company until the property should be fully paid for according to the terms of the contract. It was agreed that, if the appellee should fail to pay the installments of money, or any one thereof, punctually, the interest of appellee in the property...