Mulligan v. McConnell Bros.

• Decision Date: 24 May 1922
• Docket Number: (No. 1977.)
• Parties: MULLIGAN v. McCONNELL BROS.
• Court: Texas Court of Appeals

242 S.W. 512

MULLIGAN v. McCONNELL BROS.

(No. 1977.)

Court of Civil Appeals of Texas. Amarillo.

May 24, 1922.

Rehearing Denied June 21, 1922.

Appeal from Wichita County Court; Guy Rogers, Judge.

Suit by McConnell Bros. against Edward Mulligan. Judgment for plaintiff, and defendant appeals. Affirmed.

Hunter & Scott and E. E. Fischer, all of Wichita Falls, for appellant.

Weeks, Morrow & Francis and Wayne Summerville, all of Wichita Falls, for appellee.

HUFF, C. J.

The appellee, McConnell Bros., sued Edward Mulligan, on a contract executed between the parties by virtue of which the appellee delivered certain household goods, giving in the petition the several articles separately and the value of each separately itemized, aggregating $888.25, the title of which was retained in the appellees until paid said sum. The appellant agreed to pay $200 cash and the balance in installments of $100, payable on the first of each month until fully paid. That $200 was paid and applied on the contract. It was agreed in writing that the interest thereon was 10 per cent. per annum upon all past-due installments and 10 per cent. additional if suit was filed. That installments amounting to $688.25 were due and unpaid. They asked for judgment for that amount, interest at 10 per cent. and 10 per cent. attorney's fees. At the same time they filed an affidavit for sequestration, describing therein the goods by items, giving the separate value of each item and stating that appellees were the owners thereof, and executed a bond in sequestration, conditioned as required by the statute, for the sum of $1,780. A writ was issued, describing the items but not stating the value. The sheriff's return thereon shows the seizure of the articles described in the writ. Thereafter the appellant executed a replevy or forthcoming bond, conditioned as required by the statute, itemizing the property, but not giving the separate value of each article; the bond reciting that the sheriff fixed the value of the articles at $500. The bond was in the penal sum of $1,000. The appellant answered by alleging a payment of $300, instead of $200 as alleged by appellee, and also alleged a failure of consideration as to one ivory bed, which was of the contractual value of $100, alleging that the bed was worthless, and that the consideration therefor for which the note had been given, failed in part. The jury found that appellant paid on the contract $200; that no part of the consideration had failed. Upon the finding of the jury judgment was rendered for appellees that they recover from appellant $842.55, principal, interest, and attorney's fees, and that, the claim being secured by a rental contract in the nature of a chattel mortgage on the property, describing the property, and itemizing it, giving the value of each article as described and set out in the petition and affidavit for sequestration, the aggregate value of which was $888.25, foreclosing the chattel mortgage lien, and decreeing the issuance of an order of sale, etc. It is further recited in the judgment:

"It further appearing to the court that a writ of sequestration was issued in this cause and was on the 15th day of October, A. D. 1920, levied upon the above-described property, and that same was on the 19th day of January, 1921, replevied by the defendant, who on the 19th day of January, 1921, executed his replevy bond therefor in the sum of $1,000, with W. N. Harrison and L. E. Key as sureties, said above property being of the itemized value as set out herein and all being of the total value of $888.25. It is further ordered, adjudged, and decreed by the court that said plaintiff do have and recover of and from the defendant, Edward Mulligan and W. N. Harrison and L. E. Key, sureties on his replevy bond, the sum of $842.25, together with interest thereon from date of judgment at the rate of 10 per cent. per annum, together with all costs in this behalf expended, for which he may have his execution."

It is asserted by proposition that it was fundamental error to omit from the judgment the reasonable value of the articles replevied, and to omit therefrom the statutory requirements that the defendant had the right within 10 days to return the property as required by articles 7106 and 7107, Revised Civil Statutes. It will be observed by the judgment the court did find the itemized value of the articles sequestered and replevied. He found the value of each article separately. This issue was not submitted to the jury, but was left for the finding of the court. Under article 1985, Revised Statutes, we think the law has been sufficiently complied with in stating the value in the judgment. It is not urged that the evidence failed to support the finding of the court. We think this will meet the holdings in Herrera v. Marquez (Tex. Civ. App.) 182 S. W. 1143; Reeves v. Avina (Tex. Civ. App.) 201 S. W. 729. It has been held unnecessary to recite in the judgment that the defendant replevying property levied on shall have the right to return the property to the sheriff accepting the bond, as he has that right under the statute. Rahlmann v. Galveston, etc. (Tex. Civ. App.) 238 S. W. 345, quoting from Mills v. Hackett, 65 Tex. 580.

The second proposition is overruled. This appears to be based upon the fact that the replevy bond was for $1,000, and as the court found the value of the property to be $888.25, the bond is not double the value of the property, and therefore void. It is a novel contention that a defendant can induce a sheriff to deliver to him property by taking a bond in double of the estimated value of the property as made by the sheriff and himself, that because the property is worth more than such estimate the bond is void. We cannot assent to the proposition.

The third and fourth assignments and propositions are predicated upon the action of the court in receiving the verdict of the jury. The jury were asked what amount had been paid on the contract account, if any. They answered, $200. The other issue No. 2, was, "What part of the entire consideration has failed, if any?" They answered: "$688.25." The...