Peaslee-Gaulbert Corp. v. Hill
| Decision Date | 07 March 1958 |
| Docket Number | No. 15374,PEASLEE-GAULBERT,15374 |
| Citation | 311 S.W.2d 461 |
| Parties | CORP., Appellant, v. Mrs. Jean HILL, Appellee. |
| Court | Texas Court of Appeals |
Matthews & Sligh, Tom D. Matthews, Dallas, for appellant.
Ungerman, Hill, Ungerman & Angrist, William Madden Hill, Melvin Yonack, Dallas, for appellee.
Nature of the proceedings was trial of right to property, Rule 717 et seq., Texas Rules of Civil Procedure; appellant having caused a levy of execution pursuant to judgment against Charles H. Hill, Jr., of $831.47 on itemized merchandise as community property; appellee wife claiming same to be separately owned by her. On trial to the court, judgment was in favor of claimant, followed by this appeal.
The earlier judgment out of which the execution arose was rendered in Dallas County Court at Law No. 1 in a 1953 suit Charles H. Hill, Jr. and wife Mrs. Jean Hill, Charles H. Hill, Jr. and wife Mrs. Jean Hill, but provided that said plaintiff take nothing against Mrs. Hill. Following the levy of execution, Mrs. Hill duly filed her claimant's oath and bond, tendering the issue above stated; to effect that at time of said levy, September 13, 1956, the merchandise seized upon was part of her separate property and estate and not subject to debts of her husband Charles H. Hill, Jr.; plaintiff corporation contending to the contrary, i. e., that such was community property of said judgment debtor and claimant, and properly subject to the execution against him. Upon request of appellant, the trial court made and filed findings of fact and conclusions of law in support of the judgment complained of. The property on date of levy was valued by the Constable at $1,500, by claimant at approximately $10,000.
The controversy in factual background centers on the operation by Mrs. Hill of a small enterprise under the trade name of Texas Lawn Equipment; complying with the assumed name statute by a filed instrument reciting the concern as 'Owned and conducted' by her; testifying that it was formed in 1953 on money personally borrowed from an individual and on her separate credit and account. In 1949 disabilities to coverture of Mrs. Jean Hill and been removed by judgment declaring her a feme sole for mercantile and trading purposes (art. 4626, Vernon's Ann.Civ.St.). 1 1] Above business venture appears to have been abandoned by Mrs. Hill at close of 1956; she having placed the merchandise in question in a Dallas warehouse for return to Jacobsen Manufacturing Company, Racine, Wisconsin, as a credit on her account when the levy was made.
All material testimony came from appellee Mrs. Jean Hill, and is here summarized: That she was the daughter of John R. Black of Corsicana, who died some six years previously, leaving an estate in which she had a trust interest; that subsequent operation of Texas Lawn Equipment was financed by the First National Bank of Corsicana on notes signed by her alone. The first Bank transaction was represented by a deposit to her separate account in Empire State Bank, Dallas, of $20,000, March 1954, being proceedings of a loan to her by the First National Bank of Corsicana; next was a note of September 1954, $15,000, proceeds placed to credit of said concern. Further notes and renewals appear in the record--transactions either by Mrs. Hill personally or for credit of the Equipment company; for example, of $40,000 in April 1955; $30,000 of August 1955, and $27,500 in February 1956. A series of checks appear, drawn by Mrs. Hill, Special Account, Empire State Bank, to order of Texas Lawn Equipment, between March 1954 and March 1955, totaling some $29,800. Bank account of the concern was with the First National Bank of Corsicana; and checks (one draft) payable to Jacobsen Manufacturing Company were given in payment for the merchandise in suit, beginning September 1955 through May 1956, totaling some $27,000; the sums so expended by Mrs. Hill representing, as she said, money borrowed from said First National Bank of Corsicana on her separate account and credit.
Balance Sheet of Texas Lawn Equipment in evidence as of December 31, 1956, showed inventory, accounts receivable, etc., of $28,901.42 (total assets $44,785.35); liabilities, principally notes and accounts payable, some $42,000; capital account (Jean Hill), $2,679.30. A sheet labeled 'Statement of Income' of the concern from beginning of operation to December 31, 1956, is also in evidence--from which we quote in part:
"Sales $147,443.81
Less: Cost of Sales
Inventory, January 1, 1956 $33,117.83
Purchases 77,616.60
Freight on Purchases 785.75
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Total $111,520.18
Less Inventory December 31, 1956 11,808.64
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Cost of Sales $ 99,711.54
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Gross Profit on Sales $ 47,732.27
Miscellaneous Income 615.82
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Gross Income $ 48,348.09
* * * * * * * * *
Net Income (Loss) $ 10,899.97"
According to Mrs. Hill and as found by the trial court, Texas Lawn Equipment during its existence 'has earned no net profits but on the other hand it has at all times operated at a loss, resulting in a loss of capital in such business and diminution of the assets and capital which was put in the business by Mrs. Jean Hill as proceeds of her personal borrowings from the Corsicana bank.'
The further Court finding is not challenged, that above mentioned personal notes of Mrs. Hill to the First National Bank of Corsicana 'were not signed by Charles Hill, Jr., her husband, and at no time was any credit by way of losses or otherwise extended to Charles H. Hill, Jr., either by any bank or by Jacobsen Manufacturing Company; nor such merchandise acquired in any form or manner through or as the result of the joint...
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