Miller v. Dunagan, 3447.
| Decision Date | 25 November 1936 |
| Docket Number | No. 3447.,3447. |
| Citation | 99 S.W.2d 434 |
| Parties | MILLER et al. v. DUNAGAN. |
| Court | Texas Court of Appeals |
Appeal from District Court, Ector County; Charles L. Klapproth, Judge.
Action by H. B. Dunagan, trustee, against Don D. Miller and another. Judgment for plaintiff, and defendants appeal.
Reformed and affirmed.
J. A. Moore, of Odessa, and T. B. Ridgell, of Dallas, for appellants.
R. W. Hamilton and T. D. Kimbrough, both of Midland, for appellee.
On June 15, 1934, C. A. Hendricks and Grace Hendricks, his wife, sold to Mrs. Jean Stonehocker and Jack Smith the fixtures owned and used by them in the Green Lantern Café located on Grant avenue in Odessa, Tex., for the consideration of $400. Of this amount $100 was paid in cash and a note secured by a chattel mortgage on the property conveyed was executed for the balance. Mrs. Stonehocker and Smith changed the name of the café to the West-Tex Café and operated it until August 17, 1934, at which time they transferred it to appellee in trust, subject to the consent of the various creditors.
The conveyance then provided that Dunagan was to take charge of the café and its operation for a period of fifteen days, during which time he was to assemble the various indebtednesses of Stonehocker and Smith and undertake to collect the outstanding accounts due them, but was to make no payments of back indebtedness until the expiration of the fifteen days, at which time he was to render an account of all receipts and disbursements from his operation. The agreement then further provided that if: "At the expiration of this 15 days, should a satisfactory showing exist among the creditors and after a prorated payment and distribution of the moneys on hand upon the indebtedness of said first party, the said H. B. Dunagan may remain in charge for a further period satisfactory to such creditors upon such terms as may be agreed upon, and subject to such further terms and conditions as may be mutually satisfactory."
On the following day another assignment was executed by Stonehocker and Smith, at least one appears in the record bearing the signature of both of them. It reads: "For value received we, Jack Smith and Gene Stonehocker, owners of the West-Tex Café, Odessa, Texas, located at next door South of J. A. Holt's Variety Store in the town of Odessa, Ector County, Texas, hereby sell, transfer, convey and set over unto H. B. Dunagan as Trustee all our mercantile, real and personal assets for the benefit of the creditors of the West-Tex Café."
On August 28, 1934, Jack Smith executed a bill of sale to the West-Tex Café to appellee. This instrument was signed by him alone.
About this time appellant Dyer took charge of the café under an agreement that if he would run the place until all the indebtedness was paid, he should then have a half interest in the business. During October, 1934, appellant Don Miller joined appellant Dyer in conducting the café and, together, they secured a lease on the property from the owner. The café was still being operated by them at the time of trial, but the name had been changed to the President Café.
On November 20, 1935, this suit was filed by appellee, against Miller and Dyer alleging that he sold the café to them on the 1st day of October, 1934, for the sum of $1,800; that they had refused to pay the purchase price; that they, in attempting to defraud him, had changed the name of the café and that he, as receiver and trustee, had a lien on the café, fixtures, stock, merchandise, equipment, and the lease on the building, which he asked to be foreclosed.
Appellants answered by a general demurrer, a general denial, and specially denied that the property sued on was ever the property of appellee as trustee or individually, and that he ever, as trustee or individually, sold the property to them, and that they ever purchased or offered to purchase the property from him for the sum of $1,800.
They further pleaded that he was estopped from setting up any claim to the property by a former suit in which he sought a receiver for the property and was likewise estopped from setting up a sale of the property to them. They also claimed to have purchased the café from Mrs. Hendrix as the mortgagee of the café as well as the interest of Mrs. Stonehocker; and alleged that the only interest ever held in the café by appellee was that of manager for Mrs. Stonehocker.
The cause was submitted to the jury upon the sole issue of whether appellants had, on or about October 1, 1934, purchased the West-Tex Café from appellee as assignee of the partnership of Jack Smith and Jean Stonehocker for $1,800. Upon the jury's affirmative answer to that issue, the...
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King v. King
...the indispensable party defendant for another reason. The appellant was the sole beneficiary under the terms of the will. Miller v. Dunagan, Tex.Civ.App., 99 S.W.2d 434; 67 Corpus Juris Secundum, Parties, § 100, page 1096. This same problem is found in the case of Johnson v. Donley, 133 Kan......
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Miller v. Dunagan, 3761.
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