Mulberger v. Morgan

• Decision Date: 19 February 1896
• Parties: MULBERGER v. MORGAN et al.
• Court: Texas Court of Appeals

34 S.W. 148

MULBERGER v. MORGAN et al.

Court of Civil Appeals of Texas.

February 19, 1896.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by Henry Mulberger against W. W. Morgan and others on certain notes. There was a judgment for defendants, and plaintiff appeals. Reversed.

Herring & Kelley, for appellant. Eugene Williams, for appellees.

COLLARD, J.

Suit brought 31st of July, 1893, by the appellant, Henry Mulberger, of Watertown, Wis., against W. W. Morgan and 17 others, appellees, upon three promissory notes, each for the sum of $833, of date the 18th day of April, 1892, due, respectively, 12, 24, and 36 months after date, payable to Dr. Valerius & Co., signed by the appellees. The notes have credits reducing the amount of principal to $1,900. Plaintiff below claimed to be the owner and bona fide holder of the notes by indorsement to him by the payee, before maturity, and for a valuable consideration, without notice of any equities of defendants. Suit was first brought on the note first due, the other two not being due at the time; but, by agreement of the parties, to save expense of litigation, all the notes were put in suit. The notes were given as payment to Dr. Valerius & Co. for a stallion sold to defendants. The testimony tended to establish the following facts, which defendants set up as a defense: Dr. Valerius & Co. were engaged in shipping to the United States fine horses from other countries, and, among others, purchased a horse from one Taylor,— a certain stallion, Prince of Faulds, foaled the 4th day of July, 1885, the property of John Laird, of Scotland, who sold him to Taylor. The horse was Clydesdale bred, a registered horse, and his pedigree was certified, and accompanied the sale. He had a brown body, black legs, and had a scar on the left hip, made by a kick from another horse in August, 1886. The scar was six inches long and three inches wide when sold by the original owner to Taylor. Dr. Valerius & Co., by their agents, brought a horse to the town of West, in McLennan county, calling him "Prince," and representing him to be a pureblooded Clydesdale bred horse, the same raised by John Laird, calling the horse "Prince Faulds"; and the agents offered him for sale as such horse. Defendants formed a company to purchase the horse, and to stand him in the neighborhood, believing him to be the very horse whose certified pedigree showed him to be Prince of Faulds, a pure-blooded Clydesdale horse. The agents of Dr. Valerius aided in forming the company to buy the horse, so as to sell him to the company. Before the organization of the company, the notes were carried around by the agents, and signed by defendants, who expected to be members of the company. It seemed to be understood that none would be allowed membership in the company, nor be allowed to sign the notes, except landowners,—responsible persons. This was for the mutual benefit of the payors of the notes; and it was also understood that each signer was to make himself liable for one-twentieth of the amount of the notes. Some, at least, of the signers signed with this understanding. Morgan, one of the signers of the notes, was to hold the notes until the sale was completed, the horse accepted, with guaranty, and the parties were all satisfied with each other as co-obligors on the notes. This was to be determined when all the parties should meet together at a general meeting in the town of West. Some of the parties so signed, and Morgan thought the notes were left in his desk. Davidson having signed the notes on Morgan's desk. Bryan and Kirkpatrick, agents for the sale of the horse, then went away, taking the notes with them to procure other signatures, which were obtained. Bryant came back, and Morgan noticed that the notes were gone, and was informed by Bryant that Kirkpatrick had them. Morgan went up to the hotel where Kirkpatrick was, to see him and get the notes. After some colloquy between them, Kirkpatrick, it was agreed, should keep the notes until next morning, when he was to have them at the meeting of the members of the company, who were then to organize and determine if the signers of the notes were suitable, and when Kirkpatrick was to execute a guaranty of the soundness of the horse. The next morning, Kirkpatrick was gone with the notes, leaving a bill of sale to the horse to the payors of the notes. They met, found the bill of sale at the hotel, containing a warranty not as full as was agreed. They took the bill of sale, thought they had been swindled, but took the horse, which was in Morgan's stable. Upon examination, the horse turned out to be unsound, diseased. They stood him awhile, putting him in charge of a man for the purpose. He proved to be a poor foal getter, and in a short time died of the disease he had at the time of the purchase. He had no scar on his hip, and though he was otherwise similar in appearance to the real Prince of Faulds, the testimony tended to...