Peters Saddlery & Harness Co. v. Schoelkopf

• Decision Date: 16 October 1888
• Parties: PETERS SADDLERY & HARNESS CO. <I>v.</I> SCHOELKOPF <I>et al.</I>
• Court: Texas Supreme Court

Page 336

9 S.W. 336

PETERS SADDLERY & HARNESS CO.

v. SCHOELKOPF et al.

Supreme Court of Texas.

October 16, 1888.

Commissioners' decision. Appeal from district court, Hill county; J. M. HALL, Judge.

The P. J. Peters Saddlery & Harness Company levied an attachment on certain property alleged to belong to J. E. Martin, and Schoelkopf & Co. filed a claim of ownership thereto, with an affidavit and bond, the latter being payable as well to said plaintiffs as to another creditor who had also levied an attachment on the same property. It appeared that before the execution of the note for which the attachment was levied Schoelkopf & Co. sent an agent to Martin, who was in the harness and saddlery business, having two stores, one at Hillsboro and one at Waxahachie, to collect a bill for goods sold him. Martin being unable to pay, the agent, on behalf of his principals, bought out the stores in payment of the debts. The debt due Schoelkopf & Co. was $2,180, and at that time Martin owed the plaintiffs about $500, and others different amounts, and was insolvent. But while Schoelkopf & Co. knew or believed him indebted, they did not know how much, or to whom. Bills of sale were executed and promptly recorded, conveying both stocks of goods. It was agreed between the parties that Martin should retain possession of the goods at Hillsboro, as a salesman of the purchasers, at a monthly salary; that he should sell only for cash, keep strict account of the receipts, and, after paying the expenses, remit the residue, twice a week, to the purchasers, Schoelkopf & Co. Martin was to manufacture and sell goods, using the stock on hand, and such other stock as Schoelkopf & Co. should send him, and they, soon after this arrangement, did send about $600 worth of stock, shipping it in their own name. Martin retained all his accounts, amounting to $1,500, at the time of the levy of the attachment, five months afterwards. About $600 worth of stock remained in the Hillsboro store, the goods in the other store having been removed to the principal place of business of Schoelkopf & Co. Martin, after the transaction, retained the same assistant he had employed previously, and no sign was put up over the door, though no effort was made to conceal the sale. Schoelkopf & Co. had the insurance on the goods immediately transferred to them. The whole contract was in writing, and recorded, with a provision that the employment as salesman might be rescinded at the option of either party, and no agreement was made to pay Martin any excess of the value of the goods over the debt, but it was simply a cancellation of the debt for the goods. Several months after the delivery of the goods, Schoelkopf & Co., finding the goods at the Waxahachie store to have exceeded the supposed value, voluntarily paid the excess to Martin, it being $153.50. The court found the goods to be the property of Schoelkopf & Co., and rendered judgment accordingly.

T. S. Smith and S. C. Upshaw for appellant. J. Abbott, for appellees.

HOBBY, J.

This was an action under the statute for the trial of the right of property to a stock of merchandise levied upon by the appellant, (plaintiffs in attachment,) on the 6th day of February, 1885, as the property of J. E. Martin, against whom appellant had instituted suit in the county court of Hill county upon a promissory note for $448.53, executed by Martin to appellant on the 27th day of September, 1884. The appellees, Schoelkopf & Co., on the 13th February, 1885, filed an affidavit, claiming the property and a bond payable to appellant and Heidman-Benoist Saddlery Company, who had caused a similar writ to be issued out of the same court, and levied upon the property. The officer assessed the value of the property at $699.98, and the bond was executed in the sum of $1,400. The writs, bond, and affidavit were returned to the district court of Hill county, where, upon the issues (already stated) joined, a trial on the 11th day of March, 1886, resulted in a judgment on the 13th March, 1886, for the claimants (appellees) for the property, from which judgment the appellant appeals, and assigns as error — First, that the court erred in refusing to dismiss the claim of appellee, because the bond was not payable to plaintiff in attachment. The bond was made payable to two attaching creditors, the appellant and Heidman-Benoist Saddlery Company, each having levied a writ of attachment upon the property which is the subject-matter of the suit.

In the case of Blankenship v. Thurman, 68 Tex. 672, 5 S. W. Rep. 836, it was suggested that the proper practice would be to make one bond payable to all the plaintiffs in the writs. This suggestion was commented upon in the case of Elser v. Graber, 69 Tex. 223, 6 S. W. Rep. 560, and it was there decided that such was the correct practice. Article 4823 of the Revised Statutes was amended by the act of the 20th legislature, which act now provides that "when more than one writ has been levied, said bond [the claimant's] may be made payable to all the plaintiffs in the several writs levied." Gen. Laws 20th Leg. 104. We are of opinion there was no error in refusing to dismiss the claim of appellees. The second assignment of error is that the court erred in not construing the bill of sale from Martin to appellees, and the contemporaneous written agreement between Martin and appellees to be a mortgage. The bill of sale is absolute upon its face, and vests the title to the property unconditionally in appellees. The written agreement executed on the same day is a contract of employment of Martin by Schoelkopf & Co., by the terms of which the former was to take "possession of the store and goods, manufacture, and supervise the manufacturing of the material into saddles, harness, etc., and, as an employe of appellees, to continue the sale of the merchandise, and remit twice per week the proceeds of sale to appellees, at Dallas, after deducting expenses, and for these services it was stipulated that Martin should be paid a salary of $65.00 monthly." And that the contract provided that "it might be rescinded at the option of either party." It is contended by appellant that the bill of sale and contract referred to, having been "executed at the same time, and between the same parties, should be construed as one...