Parlin & Orendorff Co. v. Miller

• Decision Date: 09 January 1901
• Citation: 60 S.W. 881
• Parties: PARLIN & ORENDORFF CO. v. MILLER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

60 S.W. 881

PARLIN & ORENDORFF CO. v. MILLER et al.¹

Court of Civil Appeals of Texas.

January 9, 1901.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Action by R. L. Miller and others against O. B. Robertson and others. From a judgment for plaintiffs, defendant Parlin & Orendorff Company appeals. Affirmed.

U. F. Short and Atkinson & Abernethy, for appellant. Harwood & Walsh and Burgess & Hopkins, for appellees.

JAMES, C. J.

This action was brought by R. L. Miller against O. B. Robertson upon a note, asserting a chattel mortgage lien on certain cattle. R. W. London and the Parlin & Orendorff Company were joined as defendants on allegations substantially as follows: That, after due registration of plaintiff's mortgage in Gonzales county, the residence of Robertson, and where the cattle were, appellant, having obtained a judgment against him in Dallas county, caused an execution to be levied on the cattle, and had them sold in Gonzales county, at which sale they were bid in by R. W. London for $100, the real value of the cattle being not less than $3,500. That actual notice of plaintiff's lien was given at and before the sale, and they were by the sheriff sold subject to the mortgage. That they were delivered by the sheriff to London, who removed them from the county, and sold, disposed of, and converted them to his own use, and placed them beyond the jurisdiction of the court. That he unlawfully converted the cattle to his own use and benefit, with notice of plaintiff's lien. That in all the acts and doings of the said London hereinbefore set out he was the agent in fact for the said Parlin & Orendorff Company, and that the said company are the real purchasers of the said cattle, and in all ways liable for the said acts of the said London as fully set forth herein, and that by reason thereof they in law became liable, upon the maturity of the said note, to pay this plaintiff the amount of his said note, interest, and all costs; and they, having failed and refused to tender the same since the maturity of said note to this plaintiff, are also liable to him for the 10 per cent. collection fees upon the principal and interest of the said note, it having been placed in the hands of attorneys for collection as hereinbefore set out, which amount is a reasonable charge, and that charged by said attorneys for said collection, all of which the said Parlin & Orendorff Company have failed and refused to do, or any part thereof, to this plaintiff's damage in the sum of $3,000. "(10) Premises considered, plaintiff prays that all of said parties be cited to answer this petition, and, upon hearing hereof, he have judgment against said O. B Robertson for said note, interest, and said 10 per cent. collection fees against all of the parties, establishing and foreclosing said mortgage lien on said personal property against said London for all said sums also; and, in case it be shown that he was the agent for the said Parlin & Orendorff Company, then against the said company for all said sums, instead of the said R. W. London, and for all costs against each party, and for all orders and decrees as he may be entitled to either in law or in equity; and as in duty bound will ever pray," etc. The pleadings of appellant will be noticed where necessary in connection with its various assignments. The judgment was in favor of plaintiff against Robertson according to the terms of the note, in favor of London, and against Parlin & Orendorff Company for $3,000. Parlin & Orendorff Company alone appeal.

The facts and circumstances in evidence admit of what the jury must have found, viz. that London acted in the matter of purchasing and disposing of the cattle on behalf of, and as the agent of, Parlin & Orendorff Company.

The first and fourth assignments of error, briefly stated, are that the court erred in overruling appellant's plea that it was entitled to be sued in Dallas county on the cause of action as stated in the petition. Besides the plea, there was an exception to the petition on this ground. The plea and demurrer were filed January 2, 1899, and were not passed on at that term of the court, and there is nothing in this record to show that appellant sought to have them acted upon at that time, or any reason why they were not in law waived by this failure. On August 3, 1899, plaintiff excepted to this plea, among various reasons, upon the ground that the plea should have been presented at the former term, and they were sustained. The court did not err in so ruling.

The fifth and sixth assignments embody the contention that the court erred in holding, on plea and demurrer, that there was not a misjoinder of causes of action, in this; that Robertson was sued upon a note upon which he alone was charged to be liable, and appellants and London were sued in tort for the conversion of certain property for which Robertson was in no way responsible. There could not well be any question that appellants and London would have been proper parties, in fact necessary parties, to a foreclosure of plaintiff's lien, if the mortgaged property appeared to be in their possession. The difficulty presented is the effect of the allegation, and the fact that they had converted and disposed of the property, and the same had been rendered inaccessible (which is probably the intendment of the allegation that the cattle had been placed beyond the jurisdiction of the court). Foreclosure upon personal property not accessible nor in existence would be impracticable. It is, however, only through proceedings to enforce the lien that plaintiff would have the right to join appellants in the action upon the note. As an actual foreclosure sale of the property was, upon plaintiff's averments, out of the question, there is some force in appellant's claim that plaintiff's cause of action against it is solely for conversion, and distinct from the debt. But, properly considered, appellant's liability is not distinct from the debt, but depends upon and grows out of it. It is only by reason of the debt that the mortgagee can pursue the purchaser of mortgaged property. Such a purchaser with notice, who destroys the subject of a mortgage, becomes liable to the mortgagee for the value of the property to the extent of the debt. Looking at the substance instead of form, the consequence of such an act is to make him liable for the debt pro tanto. The authorities agree with the view of the trial judge, viz. that appellant was properly joined. Templeman v. Gresham, 61 Tex. 50; Taylor v. Felder (Tex. Civ. App.) 23 S. W. 480. See, also, Newsom v. Beard, 45 Tex. 151.

The third and twelfth assignments will be disposed of by saying that, where a party is entitled to sue both principal and agent for a tort committed, he may sue both or either, and cannot be required to elect which one he shall prosecute his suit against, and he is not, by suing one, precluded thereby from afterwards joining the other.

We regard the thirteenth and fourteenth assignments as wholly without force. Our conclusion of fact disposes of the seventeenth and twenty-eighth. The nineteenth assignment complains of the refusal of this charge: "It devolves upon the plaintiff to prove the existence of his debt at the time of the execution of the mortgage, and it is the...