Montgomery v. Gallas

• Decision Date: 03 April 1918
• Docket Number: (No. 6001.)
• Parties: MONTGOMERY v. GALLAS.
• Court: Texas Court of Appeals

202 S.W. 993

MONTGOMERY v. GALLAS.

(No. 6001.)

Court of Civil Appeals of Texas. San Antonio.

April 3, 1918.

Rehearing Denied May 1, 1918.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit by W. T. Montgomery against Paul Gallas. From judgment rendered, plaintiff appeals. Judgment reformed and affirmed.

W. R. Abernathy, of McKinney, and Marshall Eskridge, of San Antonio, for appellant. Don A. Bliss, of San Antonio, and G. R. Smith, of McKinney, for appellee.

SWEARINGEN, J.

Appellant, W. T. Montgomery, brought this suit to recover the amount of three notes made by appellee, all of which were past-due and unpaid, and to foreclose a chattel mortgage lien on the mules and personal property described in the mortgage. Appellee, Paul Gallas, answered, admitting the notes and mortgage, but alleged a cross-action against appellant, by which appellee sought to set off the amount of the debt evidenced by the notes. The amount alleged in the counterclaim or cross-action was very much greater than the amount of the notes. Special issues were submitted to a jury. Judgment was rendered in favor of appellant for the sum of $481.26 and a foreclosure of the mortgage lien.

In reply to appellant's cause of action based upon the three notes for $1,148.67 each and chattel mortgage, appellee admitted the cause of action, but for a cross-action alleged that appellant, on December 6, 1915, wrongfully took possession of all the property described in the said mortgage and thereby prevented appellee from finishing the work contracted with Montgomery & Perkins, which work appellee would have completed by February 6, 1916, and for which appellee would have made a profit of $1,500. It was further alleged by appellee that the reasonable value of the use of the said property thus wrongfully seized by appellant was $1,000 a month, and that appellant unlawfully retained possession of the said property until June 22, 1916, at which time most of the property was delivered to appellee in a greatly damaged condition. The damage was assessed at $5,000. Appellee further alleged in the cross-action that in July, 1916, appellant again wrongfully deprived appellee of the possession of his said property by an illegal sequestration. A part of the property, consisting of a few of the mules and some of the equipment, was replevied by appellee himself, but a large portion of the property, all of which was described, was replevied by appellant, while a smaller portion has never been replevied, but still remains in the possession of the sheriff, who holds same claiming a lien for costs of taking and keeping. The reasonable value of the use of the property replevied by appellant and of that held by the sheriff from the date of the seizure by virtue of the sequestration up to the day of the trial is alleged to be $10,000. Exemplary damages were also alleged and prayed for. There are other allegations in the cross-bill, but the foregoing substantially states the counterclaim material to the questions presented for review.

To appellee's cross-action appellant answered in a supplemental petition, alleging that appellant took possession of the mortgaged property on December 6, 1915, under an agreement with appellee by the terms of which appellant was to continue to use the same in performing road work for Montgomery & Perkins in Collin county, Tex.; that appellant in accordance with this agreement did use the teams and equipment for said work until June 22, 1916, when appellant delivered the property in good condition to appellee. The supplemental petition alleged that all the profits made by the use of said property were paid to appellee or for his benefit either upon his order or a valid judgment of a court; that appellant received none of the profits to credit upon the three notes sued upon. The foregoing summary of the pleadings by no means presents a hæc verba version, but we think is ample for our purpose.

The sequestration was quashed. The evidence shows that appellee owed four notes of $1,148.60 each to appellant, all secured by a chattel mortgage on the teams and equipment of appellee, and all dated September 1, 1915, and maturing in 60, 90, 120, and 150 days from date respectively. On December 6, 1915, two of the notes matured and were unpaid. On that date appellee agreed with appellant for the latter to take possession of the entire outfit, all of which was at that time being used in the building of roads under subcontract with Montgomery & Perkins in Collin county, Tex. It was further agreed that all profits made by said "outfit" should be credited upon the said notes or paid to the order of appellee. This agreement of December 6, 1915, was oral and made between appellee and W. T. Montgomery, appellant, and was not made with the partnership of Montgomery & Perkins. In accordance with this agreement appellant used the outfit on various roads for Montgomery & Perkins. The entire profits earned by the outfit from July, 1915, until June 22, 1916, was $2,858.10. Of this sum appellant received $1,477.80 in payment of cash paid on the order of appellee and in liquidation of the first of the four notes, which first note is not sued for herein. All the balance was paid by Montgomery & Perkins on the order of appellee except about $548.38, which was paid to satisfy a garnishment judgment in favor of Marucheau Grain Company against Montgomery & Perkins. On June 22, 1916, appellant delivered the outfit to appellee. At this time the three notes were past due and unpaid and secured by the chattel mortgage. Appellee moved a part of the "outfit" to Kaufman county, a part to Henderson county, and left a part in Collin county. In July, 1916, appellant caused all the property to be seized by sequestration proceedings. He himself replevied that part seized in Kaufman county, and used same for profit from that time until the date of the judgment herein. The reasonable value of the use of same was $2,290. The portion seized in Collin county was not replevied by any one, but remained in the possession of the sheriff until the time of the trial. The reasonable value of this latter part, from the time seized until the date of the judgment, is $600. The balance of the outfit appellee replevied within ten days after seizure.

The first assignment complains of the trial court's order overruling appellant's exception to appellee's second amended answer. The substance of the exception is that allegations in the answer which were assailed alleged an unliquidated demand that was not founded upon appellant's cause of action; that did not arise out of it and was not incident to nor connected with it.

The cause...