Parker v. American Exch. Bank of St. Louis

• Decision Date: 28 June 1894
• Parties: PARKER et al. v. AMERICAN EXCH. BANK OF ST. LOUIS.
• Court: Texas Court of Appeals

27 S.W. 1071

PARKER et al. v. AMERICAN EXCH. BANK OF ST. LOUIS.

Court of Civil Appeals of Texas.

June 28, 1894.

Appeal from district court, Dallas county; Charles Fred. Tucker, Judge.

Action by the American Exchange Bank of St. Louis against Parker Bros. There was a judgment for plaintiff, and defendants appeal. Affirmed.

Scarborough & Rogers and S. C. McCormick, for appellants. McCormick & Spence, for appellee.

LIGHTFOOT, C. J.

We adopt appellants' statement of the issues, as follows: Plaintiff bank filed its petition in the district court of Dallas county on May 24, 1892, seeking to recover the amount of fourteen notes, all being dated December 23, 1891, aggregating altogether about $2,000, all made by Parker Bros., and payable to the order of Embree-McLean Carriage Company, all bearing interest at the rate of 10 per cent. per annum from maturity, stipulating for 10 per cent. attorney's fee (if placed in the hands of an attorney for collection), five of them payable on May 2, 1892, four of them on May 3, 1892, and one of them on May 4, 1892, and each of them having the following words indorsed on the back: "This note is given in accordance with and subject to the terms of a contract made February 10, 1891." The petition, after describing said notes, alleged that said carriage company, before the maturity of said notes, indorsed all of them in blank with its name, and in due course of trade, for a valuable consideration, sold, transferred, and delivered said notes to appellee; that the said notes were given for certain personal property described in Exhibit A to the petition, and sold to appellants by said company in accordance with a contract between appellants and said company, which is set out below. The petition further alleged that the notes sued on were given in accordance with the terms of said contract in settlement of goods remaining unsold on January 1, 1892, and that the said notes, by virtue of the reservation of title contained in said contract, were secured by a lien on the goods described in Exhibit A to the petition. There was a prayer for judgment for the amount of the notes, and for foreclosure of the alleged lien on the goods. Defendants answered (1) by general demurrer; (2) by special demurrer, to the effect that plaintiff's petition showed that the notes sued on were not to be sold, and that plaintiff had no title thereto, and that said notes were loaned, and to be returned to defendants, and canceled at the expiration of four months from their date; (3) by general denial; and (4) by special plea; that the notes were accommodation notes, and were to be paid only when the goods in respect to which they were given were sold; that said notes were to be returned to defendants at the end of four months from their date, and other four-months accommodation notes given in their stead; that the goods had not been sold, and they were tendered back, and that said notes were not to be sold, and that plaintiff had full notice of such facts; that the goods were merely consigned to defendants (appellants) to be sold on commission, and that the title to said goods still remained in said carriage company. There was a judgment for the appellee, from which this appeal was taken.

The facts proved and the judgment of the court thereon authorize the following findings:

(1) That appellants, Parker Bros., about February 10, 1891, were dealing in carriages, buggies, etc., in Waco, Tex., and the Embree-McLean Carriage Company were wholesale-dealers in St. Louis, Mo., and there was a written agreement between the said parties on said February 10, 1891, said carriage company acting through its agent, A. L. Burnett, evidenced by the following instruments, viz.:

"Embree-McLean Carriage Co., St. Louis, Mo.: Consign us, on sale to be paid for in cash, at your invoice price, when and as sold, the vehicles we may order from time to time, which we agree to receive from the carrier, pay all freight and transportation charges, store and exhibit for sale in our repository or storehouse, and keep fully insured against fire, for your benefit, all without charge or cost to you. For goods remaining unsold January 1, 1892, we agree to settle by note at (4) four months, or deliver said goods at depot in our town in as good condition as received, free of charge for drayage paid, storage, insurance, or any expense whatsoever, except freight at the option of said Embree-McLean Carriage Co. It is agreed that for violation of the contract herein, or at any time Embree-McLean Carriage Co. may deem themselves insecure, said goods shall be subject to order of said company on payment only of actual freight on goods on hand, previously paid by us. It is agreed all orders are subject to your approval; that the title of the goods remain in you till paid for in money; and that no statement, representation, or promise made by agent, not herein embodied, is binding on you, and that goods are guarantied only under warranty printed in catalogue. Dated at Waco, Texas, this 10th day of Feb., 1891. Dated February 10, 1891. Parker Bros."

"In consideration of their acceptance of a consignment contract made with the Embree-McLean Carriage Co. this day, we agree to loan said company, at the time any shipment is made, one note, due in four months, for an amount equal to invoice price of goods consigned, conditioned that said note shall be canceled and returned at maturity, and our new note, due January 1, 1892, and equal in amount to invoice price of the goods remaining unsold at maturity of first note, be loaned said company instead, which note is also to be canceled and returned at maturity; it being agreed that at any time said assignment account may be closed by payment of full amount, or return of goods on Embree-McLean Carriage Company's demand, our notes are to be canceled and returned immediately. Parker Bros."

"It is agreed that the Embree-McLean Carriage Company are not to sell our note, but reserve the privilege to use same as collateral at any time. A. L. Burnett."

(2) That in compliance with said agreement the carriages, buggies, etc., described in plaintiff's petition were shipped by said carriage company to appellants, aggregating the amount of the notes sued on.

(3) That in compliance with the agreement, appellants executed to said carriage company their several accommodation notes, to be used by it as collateral security, and that before the time fixed in said contract for final settlement — January 1, 1892 — said carriage company wrote to appellants, demanding a settlement in accordance with the terms of the contract. That such settlement was duly made between the parties, the accommodation notes previously executed by appellants were returned to them, and the notes sued on were executed by appellants, and sent to said company in full settlement for said goods; and that said company, after receiving said notes, caused the original contract and the bill of said carriages, etc., to be registered as a chattel mortgage in McLennan county, where said property was located. That said notes were indorsed before suit by said carriage company to appellee, which is the owner of the same, and the judgment below represents the amount...