Mullin v. Nash-El Paso Motor Co.

• Decision Date: 01 March 1923
• Docket Number: (No. 1419.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 250 S.W. 472
• Parties: MULLIN v. NASH-EL PASO MOTOR CO. et al.
• Court: Texas Court of Appeals

250 S.W. 472

MULLIN v. NASH-EL PASO MOTOR CO. et al.

(No. 1419.)^*

Court of Civil Appeals of Texas. El Paso.

March 1, 1923.

Rehearing Denied March 22, 1923.

Appeal from District Court, El Paso County; B. Coldwell, Judge.

Action by the Nash-El Paso Motor Company against J. F. Mullin, Paul V. Broyles, and others, in which defendants Broyles and another brought a cross-action against defendant Mullin. From a judgment for plaintiff against all defendants and for defendants Broyles and others against defendant Mullin, the latter appeals. Reformed and affirmed.

F. C. Knollenberg and R. J. Channell, both of El Paso, for appellant.

Paul D. Thomas and Steve Lattner, both of El Paso, for appellees.

Statement of Case.

HIGGINS, J.

The Nash-El Paso Motor Company brought this suit against Paul V. and Simmie Lee Broyles, R. L. Eaton, and J. F. Mullin, alleging the execution and delivery of certain notes by the first three named defendants in favor of the plaintiff, given in part payment for an automobile and secured by chattel mortgage on the automobile, and that Mullin was claiming some interest in the car and had the same in his custody, having either purchased the same from the makers of said notes or taken possession under contract with said parties.

Judgment was prayed against all defendants for the amount of the notes with foreclosure of lien.

Paul V. and Simmie Lee Broyles and Eaton answered by general demurrer and general denial, and the said Paul V. and Simmie Lee Broyles set up a cross-action against Mullin alleging that said automobile had been sold by them to Mullin for $600 cash and the assumption and agreement by Mullin to pay the notes sued upon by the plaintiff, and they prayed for judgment over against Mullin for whatever amount they might be compelled to pay upon said notes.

Mullin answered the petition of the plaintiff with general denial and plea of disclaimer of any interest in the automobile. To the cross-action of Paul V. and Simmie Lee Broyles he likewise answered by general demurrer and general denial.

The case was submitted to a jury upon special issues which, with the answers, are as follows:

"Question No. 1: Do you find from a preponderance of the evidence that the defendant J. F. Mullin agreed with the defendant Broyles that he, J. F. Mullin, would assume or pay off and satisfy the notes sued upon by the plaintiff? Answer: Yes.

"Question No. 2: (a) Do you find from a preponderance of the evidence that J. T. Grainey, for J. F. Mullin, agreed that J. F. Mullin would assume or pay off and satisfy the notes sued upon by the plaintiff? Answer: Yes.

"(b) Did J. T. Grainey have actual authority from J. F. Mullin to make such agreement, if any? Answer: Yes.

"(c) Was it within the apparent scope of the authority of J. T. Grainey to make such agreement, if any? Answer: Yes."

Upon the verdict judgment was rendered as follows: In favor of the Nash-El Paso Motor Company against Paul V. Broyles, Simmie Lee Broyles, R. L. Eaton, and Mullin for the amount due upon the notes sued upon, with foreclosure of lien upon the automobile; in favor of Paul V. Broyles, Simmie Lee Broyles, and R. L. Eaton against Mullin for like amount. From this judgment Mullin appeals.

Opinion.

There is no pleading to support any judgment in favor of Nash-El Paso Motor Company against Mullin except for foreclosure. Nor is there any pleading to support the judgment in favor of Eaton against Mullin. This is conceded by Eaton. The judgment will be corrected in these two particulars.

According to the testimony of Paul V. Broyles, he and Mullin agreed upon the terms of sale, and Mullin, in payment for the car, agreed to assume the payment of the notes sued upon by the plaintiff and to allow Broyles a credit of $600 upon a house which Broyles was to buy from Mullin. Mullin denied that he agreed to assume the payment of the notes, but this issue was resolved against him by the first finding.

When the exchange of the house and car was consummated, Mullin was not present, but was represented by his agent, J. T. Grainey. The third and fourth propositions question the sufficiency of the evidence to support the finding that Grainey was authorized by Mullin to agree or did agree that the latter would assume the payment of the notes. The seventh proposition complains of the form in which question 2 is submitted. A sufficient reply to these propositions is that, Mullin himself having agreed with Broyles to assume the payment of the notes as found in reply to the first question, all issues submitted in question 2 became immaterial.

The fifth proposition asserts that the assumption by Mullin is unenforceable because it was a promise to answer for the debt of another and was not in writing. Article 3965 R. S. This is untenable. Spann v. Cochran & Ewing, 63 Tex. 240.

The sixth proposition is without merit. The cases cited in support thereof are inapplicable for reasons which are obvious.

It is asserted that the evidence shows that the car sold by Broyles to Mullin was a secondhand motor vehicle, and that in making the sale Broyles failed to comply with the provisions of chapter 138, Acts 36th Leg. Sections 3a, 3b, 3c, and 4 of that law (Vernon's Ann. Pen. Code Supp. 1922, Arts. 1617¾c-1617¾f) make it unlawful and a misdemeanor for any person:

3a: To sell or trade such a vehicle without having in his actual physical possession the tax collector's receipt for the license fee for the current year that the vehicle is offered for sale.

3b: To sell or trade such vehicle without transferring by indorsement such receipt.

3c: to buy or trade for such a vehicle without demanding and receiving such receipt.

4: To sell, trade or otherwise transfer such a vehicle without delivering to the purchaser a bill of sale in duplicate in a prescribed form.

Upon the trial Broyles offered in evidence a bill of sale in substantial compliance with the fourth section of the act, and it was shown that the same was executed in duplicate and delivered to Grainey for Mullin.

The record is silent as to whether at the time the Broyleses had in their actual physical possession the license fee receipt for the current year and transferred the same by indorsement to Mullin.

The act in question has been considered by the courts, and it has been held that an attempted sale without compliance with the law passed no...