Phillips v. Stanzell

• Decision Date: 02 January 1895
• Citation: 28 S.W. 900
• Parties: PHILLIPS v. STANZELL et al.
• Court: Texas Court of Appeals

28 S.W. 900

PHILLIPS v. STANZELL et al.

Court of Civil Appeals of Texas.

January 2, 1895.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by Henry Phillips against C. J. Stanzell and others for money had and received and for the foreclosure of a chattel mortgage. Judgment for defendants, and plaintiff appeals. Reversed.

Appellant, Henry Phillips, brought this suit, September 22, 1892, against appellees, Stanzell & Levinski, a firm composed of C. J. Stanzell and L. Levinski, and one Ed. Hatton. Service was had upon C. J. Stanzell and upon Ed. Hatton, but not upon L. Levinski, whose residence was alleged to be unknown. The suit was for money had and received of plaintiff by Stanzell & Levinski, to wit:

                December 28, 1891 .................. $300 00
                January 14, 1892 ...................   50 00
                January 25, 1892 ...................   10 00
                February 1, 1892 ...................  180 00
                February 6, 1892 ...................   20 00
                                                     _______
                                                     $560 00
                

— all of said sums alleged to be due upon demand. Also upon a note of Stanzell & Levinski, of date February 2, 1892, for $350, due at 60 days, bearing 10 per cent. per annum interest after maturity, and providing for 10 per cent. on amount as attorney's fees in case it should be placed in the hands of an attorney for collection. Also upon another note of Stanzell & Levinski, of date February 6, 1892, for $175, due at 30 days, bearing 12 per cent. interest per annum from maturity, and providing for 10 per cent. on amount as attorney's fees in case suit should be brought thereon. All of the indebtedness alleged to amount to $1,085. The petition also seeks to foreclose a chattel mortgage alleged to have been executed by Stanzell & Levinski on the 8th day of February, 1892, upon all the fixtures and furniture in the Turf Saloon, on Austin street, in the city of Waco, Tex., consisting of articles specified, to secure the indebtedness sued on. It is alleged that Ed. Hatton claims to own some interest in the property, wherefore he is made a party. C. J. Stanzell, for Stanzell & Levinski, answered for his firm by demurrer and general denial, and for himself that the firm of Stanzell & Levinski was dissolved on February 5, 1892, and that L. Levinski, who executed the mortgage, had no right or power to execute the mortgage for the firm; that the demands sued on were made and incurred by Louis Levinski for his own individual use, and without the authority of the firm; and that the firm never got the benefit of the money loaned for which the debt was incurred, — of which facts plaintiff had notice. The answer of Stanzell made for himself was duly verified by his affidavit. Hatton demurred and denied generally. Plaintiff replied to the answer by demurrer, denying the dissolution of the partnership of defendants Stanzell & Levinski, but that, if it was in fact dissolved as alleged, he had no notice of the fact, and took the mortgage in good faith to secure his debt. Trial by the court without a jury, May 23, 1893, and judgment rendered for all the defendants, from which this appeal is taken.

The testimony shows that one Jake Levinski, the brother of L. Levinski of the firm of Stanzell & Levinski, was the agent of plaintiff, Phillips, the latter resident in New York, a brother-in-law of the Levinskis, and managed for him (Phillips) a jewelry business in Waco, Tex. Stanzell and L. Levinski formed a partnership about the 1st of September, 1891, for the purpose of carrying on a saloon and restaurant business. The firm carried on the business from the time the partnership was formed until about the 5th of February, 1892, on which date the partnership was dissolved, L. Levinski making to Stanzell a bill of sale or transfer of all his (Levinski's) interest in the saloon known as the "Turf Saloon." The bill of sale was in writing; was proved up for record by a witness thereto (Louis White) before W. D. Herring, a notary public; and was duly recorded February 16, 1892, in records of the county clerk's office of McLennan county; C. J. Stanzell at the time of dissolution agreeing to pay all the debts of the firm. Stanzell came to Waco in September, 1891, was a stranger there, and brought all the furniture and fixtures of the saloon with him and put them into the business. Louis Levinski did not put anything into the business at the time it commenced, but agreed to do so later on. The place of business was only a few doors from the jewelry store of Jake Levinski, agent. All the moneys that L. Levinski put in the concern Stanzell supposed were payments by the former on his share as partner.

To establish his case, plaintiff's proof read in evidence was: (1) A check drawn by Henry Phillips, per J. Levinski, on Farmers' & Merchants' National Bank of Waco, for $300, payable to order of L. Levinski, indorsed, "Stanzell & Levinski." (2) Other checks drawn by Henry Phillips, per J. Levinski, payable to order of Stanzell & Levinski, indorsed, "Stanzell & Levinski," stamped "Canceled" on or about the dates of the checks, as follows: One for $500, dated January 14, 1892; one for $10, dated January 25, 1892; one for $150, dated February 1, 1892; and one for $30, dated February 1, 1892. (3) Two notes, one for $350, dated February 2, 1892, due 60 days after date; and one for $175, dated February 6, 1892, due 30 days after date, each executed by Stanzell & Levinski to J. Levinski, agent, the one for $175 bearing 12 per cent. interest per annum from maturity, and the one for $350 bearing 10 per cent. interest per annum after maturity, and providing for the payment of 10 per cent., attorney's fees for collection in case of legal proceedings. The note for $350 was indorsed, "J. Levinski, Agent," and "Lewine Bros." (4) A chattel mortgage, dated February 8, 1892, signed "Stanzell & Levinski," per Louis Levinski, to H. Phillips, for the purpose of securing an indebtedness of $1,085, mortgaging and conveying all the furniture and fixtures in the Turf Saloon in the city of Waco. Stanzell & Levinski opened an account with the Waco State Bank, February 2, 1892, and at the time deposited $115 cash, and the $350 note signed "Stanzell & Levinski," to J. Levinski, agent, indorsed by Lewine Bros. and J. Levinski, agent; the bank giving them a credit for the $115 cash and the amount of the note, $350, or total of $465. Both Stanzell and L. Levinski made other deposits subsequently, and both checked out on the account with the bank various amounts until February 6, 1892, when their balance with the bank to their credit stood $172.49, which balance, by instructions of Stanzell, was transferred to his individual account on the 8th day of February, 1892. On February 5th there was deposited with the bank to the credit of the firm's account $52, leaving a balance in their favor of $172.14. On February 5th $100 was checked out, and on the 6th $130 was deposited, and on the same day $29.65 was checked out, leaving a balance, as before stated, in favor of the firm of $172.49. Prior to the time of opening the account with the Waco State Bank, the firm of Stanzell & Levinski did business with the Farmers' & Merchants' National Bank at Waco, and so continued until about February 1, 1892, when the account was closed and they changed to the Waco State Bank. The books of the Farmers' & Merchants' National Bank on December 28, 1891, showed that Stanzell & Levinski deposited $72 cash and $300 in checks. On February 6, 1892, the account of Stanzell & Levinski with and due to W. K. Finks & Co., amounting to $95, was paid, but whether by Levinski or Stanzell is not shown. This account had been some time past due, and had been put into the hands of Attorney Blair for collection. The testimony shows that the check in evidence by plaintiff to the firm for $175 was given to L. Levinski on his application to his brother, J. Levinski, and upon the statement of the former that the firm was in debt to Finks & Co. for groceries, which had been placed in the hands of Attorney Blair for collection. The check for $300 was also given and made payable to L. Levinski upon the application of L. Levinski, and upon his statement that his firm owed one Archenhold a large sum of money, that he was demanding his money, and that unless the...