Morgan v. Hardy

• Decision Date: 19 January 1933
• Docket Number: No. 2776.,2776.
• Citation: 57 S.W.2d 204
• Parties: MORGAN v. HARDY et al.
• Court: Texas Court of Appeals

Page 204

57 S.W.2d 204

MORGAN v. HARDY et al.

No. 2776.

Court of Civil Appeals of Texas. El Paso.

January 19, 1933.

Rehearing Denied February 16, 1933.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by W. T. Hardy and others against J. Doug Morgan, wherein defendant filed a cross-action against the Universal Motor Company. Judgment in favor of W. T. Hardy against defendant, and in favor of J. V. Hardy against defendant, and judgment against the Universal Motor Company and against defendant on his cross-action, and defendant appeals.

Affirmed.

J. Louis Shook and Smithdeal, Shook, Spence & Bowyer, all of Dallas, for appellant.

J. E. Gilbert and Bailey, Nickels & Bailey, all of Dallas, for appellees.

PELPHREY, Chief Justice.

This suit was instituted by appellees, as plaintiffs, against appellant, as defendant, in the 101st district court of Dallas county, Tex., on July 21, 1928.

While the correctness of some of the findings of fact made by the trial court are questioned, yet we think they present a reasonably fair statement of the facts and we shall quote them here and later discuss those portions attacked. They are:

"1. That defendant, J. Doug Morgan, on February 12th, 1925, contracted with Hardy Light Company, a corporation, for the purchase and shipment to defendant at Jacksonville, Texas, from the factory of Universal Motor Company of Oshkosh, Wisconsin, the electric plants described in the pleadings to be delivered at destination not later than March 5th, 1925, and for the price and sum of $3,125.00, of which $1,000.00 was paid at the time the order was given."

"2. That shipment was made of the plants and delivered and accepted."

"3. That on February 24th, 1925, defendant executed and delivered four promissory notes payable to Hardy Light Company, a corporation, each in the sum of $200.00, with interest at 10% per annum fram maturity, and maturing respectively in 30, 60, 90 and 120 days after date, and providing for 10% attorney's fees, on which notes defendant's address is given at Corsicana, Texas.

"That the note first maturing was paid at maturity, and that on May 4th, 1925, $98.00, and May 15th, 1925, $50.00 was paid and credited on the second maturing note and nothing more was paid on said notes."

"4. That on or about the date of the execution of said four notes and before maturity of either of them, the same were endorsed in blank by the payee and sold to W. T. Hardy, one of the plaintiffs herein for $750.00, and the said sum so paid by him was paid by Hardy Light Company to the plaintiff, Universal Motor Company. W. T. Hardy bought said notes and paid therefor in good faith and without knowledge or notice of any defects therein or defense thereto, and he was not in anywise connected with the Hardy Light Company.

"That said W. T. Hardy is still the owner and holder of the unpaid notes and is entitled to recover the amount due thereon at this date, which with attorney's fees, aggregates $833.10."

"5. That on February 28th, 1925, defendant executed and delivered to the Hardy Light Company, a corporation, twenty-eight (28) trade acceptances of that date, maturing respectively one on Tuesday of each week, all having been accepted by defendant on March 3rd, 1925, each being in the sum of $50.00, except that maturing December 29th, 1925, which is for $46.75." (Here follows a description of the trade acceptances.)

"6. That the 15 acceptances first maturing, Nos. 750 to 764, inclusive, and $40.65 of No. 765, of said acceptances aggregating $790.65, belonged to plaintiff, Universal Motor Company, a corporation, and $9.35 of said No 765, and the remainder of said trade acceptances aggregating $606.10 principal, with interest at 10% from their respective due dates belong to J. B. Hardy, one of the plaintiffs, and the amount due thereon, with interest and attorneys' fee aggregates $1085.35, and all were endorsed in blank and delivered to him before maturity."

"7. That on the 3rd of March, 1925, the defendant, J. Doug Morgan, executed a chattel mortgage of that date in favor of Hardy Light Company, Inc., to secure the sum of $2,196.75 due said Hardy Light Company, Inc., evidenced by the four notes and tweney-eight trade acceptances above described, one due on Tuesday of each week commencing June 30th, 1925, with 10% from maturity, to the total amount of $1396.75, and which mortgage was upon two Universal 12½ K. W. Electric Lighting Plants wired in parallel, described as follows: (here follows description) which property was to remain in Texas, except from time to time might be removed upon the written consent of the Hardy Light Company, Inc."

"Said mortgage contains the usual provisions as to foreclosure and taking possession by mortgagee, or its assigns, for the satisfaction of said debt, with 10% attorney's fees if placed in the hands of attorney, or collected through probate court."

"8. That at some date not disclosed defendant, Morgan, without the written consent of Hardy Light Company, Inc., or any of the plaintiffs, carried said mortgaged plants out of the state of Texas and into the state of Iowa, and to Cedar Rapids therein, and then stored the same in his own name, where they remained until some time not stated, but between the time this suit was filed and the trial thereof, when by agreement between defendant Morgan and plaintiff Universal Motor Company, a corporation, said Morgan surrendered and delivered possession of said two plants to said Universal Motor Company, without the knowledge or consent of said W. T. or J. V. Hardy, the holders and owners of said notes and the trade acceptances as above found, and plaintiff Universal Motor Company, a corporation, accepted possession of said plants and relinquished all claim against said Morgan."

"9. That the plaintiffs used and exercised due diligence to procure service of citation upon defendant Morgan from the beginning of this suit, and until October 1931, when service was procured by one of the plaintiffs taking citation in person to the sheriff of Delta county, Texas, and there pointing out the defendant."

"That defendant was a transient person, and had during the pendency of this suit, and has his domicile and place of residence in Savanna, in Carroll county, state of Illinois."

After being served in October, 1931, appellant answered by general demurrer, general denial, a plea of the four-year statute of limitations, a plea of settlement, and prayed for a judgment over against Universal Motor Company in case of judgment against him in favor of the Hardys.

The trial court rendered judgment in favor of W. T. Hardy and against appellant in the sum of $833.10; in favor of J. V. Hardy against appellant for $1,085.35; that Universal Motor Company take nothing; that appellant take nothing on his cross-action against Universal Motor Company; and that the chattel mortgage be foreclosed for the satisfaction of the amounts due W. T. and J. V. Hardy.

This appeal has been perfected from said judgment.

Opinion.

In his ten propositions appellant attacks the correctness of the judgment on the following grounds: (1) That the finding of the court that appellees exercised due diligence to procure service of citation upon appellant was not a finding of fact but merely a conclusion of the court and therefore insufficient to support judgment based thereon; (2) that the evidence was wholly insufficient to support such finding; (3) that the facts shown were insufficient, as a matter of law, to amount to diligence such as would toll the statute; (4) that the court having found that appellant was a nonresident, transient person, no diligence was shown in the absence of a showing that appellant was cited by publication; (5) that the finding of the court that appellant was a transient person and had his residence in Illinois was without evidence to support it; and (6) that the court was without power to foreclose a lien on property which was without the state at...