Pitts v. Elser

• Decision Date: 17 April 1894
• Citation: 32 S.W. 146
• Parties: PITTS et al. v. ELSER et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 146

32 S.W. 146

PITTS et al. v. ELSER et al.¹

Court of Civil Appeals of Texas.

April 17, 1894.²

Appeal from Tarrant county court; W. D. Harris, Judge.

Action by Fannie L. Pitts and her husband against Max Elser and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

The second assignment of error was: "The court erred in sustaining defendants' exceptions to that portion of plaintiffs' petition wherein the plaintiffs plead and allege the coverture of the plaintiff Fannie L. Pitts in avoidance of the contract she is alleged to have entered into with defendants to purchase the goods described in plaintiffs' petition, because said plea of coverture sufficed in law to avoid the contract in question, and entitled her to recover back from the defendants the purchase money paid them by her." The fifth assignment of error was: "The court erred in charging the jury as follows: `While a married woman cannot be made to pay future payments on the contract for the sale of a stock of goods, yet it is also true that if she voluntarily, and of her own accord, makes such a contract, and pays part of the purchase money down, she cannot recover back that paid, if she declines to go on and consummate the transaction,'—said charge not being the law when the contract is executory, as in this case."

Randolph & Rogers, for appellants. Ball, Tempel & Ball and M. B. Harris, for appellees.

Statement of the Case.

TARLTON, C. J.

Mrs. Fannie L. Pitts, joined by her husband, L. C. Pitts, brought this suit against Max Elser, N. Harding, and T. P. Boyd to recover the sum of $1,000, her separate property, alleged to have been unlawfully converted by the defendants. The latter, who are appellees, prevailed in the trial court. On June 16, 1890, L. C. Pitts, an insolvent merchant, executed a deed in trust to B. H. Dunn, trustee, for the benefit of certain creditors, including the defendant T. P. Boyd, the City National Bank, and the Ft. Worth National Bank, of which the remaining defendants were the representatives. This instrument authorized Dunn to sell the goods thereby transferred, at private sale or in bulk, for cash. On July 16, 1890, the preferred creditors, by written instrument, authorized B. H. Dunn to deliver the entire stock to L. C. Pitts, as agent of the creditors, Pitts to sell, and pay the proceeds to Max Elser, who, after paying the expenses, was authorized to replenish the stock, paying the balance of the proceeds to the preferred creditors. By an amendment to this instrument, acknowledged July 23, 1890, N. Harding and T. P. Boyd were by the preferred creditors appointed, with Max Elser, a "consulting body in carrying on the above business,—a decision of the majority to be final." Under the instrument of date July 16, 1890, L. C. Pitts, as the agent of the preferred creditors, took and held possession of the merchandise. On December 18, 1890, the defendants, as representatives of the preferred creditors, with the acquiescence and by the co-operation of the husband, L. C. Pitts, entered into a contract with Mrs. L. C. Pitts, whereby she agreed to pay to them, for the entire stock of merchandise, the sum of $1,000 in cash, and the further sum of $1,000 to be paid on January 5, 1891, and the further sum of $320 at a future date, to be evidenced by her promissory note. In accordance with this agreement, she paid the sum of $1,000 in a check, which was promptly collected, and applied pro rata for the benefit of the preferred creditors. The money thus paid was the separate property of the wife, Mrs Pitts. This lady testified that when she delivered the draft it was expressly understood that it was not to be cashed for a day or two, and that in the meanwhile, if her attorneys should advise her that she could not hold the goods, as against the creditors of her husband, she should be at liberty to cancel the contract. This testimony was expressly contradicted by evidence offered on the part of the defendants, and under the verdict of the jury, to whom this issue was fairly submitted by the court for solution, we must conclude against the contention of the plaintiff. On December 18, 1890, in accordance with the terms of the agreement, the defendants, as trustees, executed to Mrs. L. C. Pitts a receipt for $1,000, embodying an agreement to turn over to her the stock of merchandise when the second payment of $1,000 should be made, on January 5, 1891, and to take her note for $320. Mrs. Pitts was advised by her attorneys to stop the transaction, as the defendants had no authority to convey the goods to her, and would vest in her no title, (1) because the creditors secured in the mortgage introduced in evidence had no power to authorize defendants to sell the goods; (2) because the written instrument introduced in evidence, under which the defendants claimed that they had such authority, conferred on them no authority to sell the goods; (3) because the sale to her being partly on time, as to so much as she bought on credit, at least, the goods would become community property. She accordingly declined to proceed with the transaction, and demanded that the amount of the cash payment be refunded to her, and for a refusal to comply with such demand she brought this suit. The plaintiff Mrs. Pitts having failed to make the second payment according to the terms of the agreement, the defendants, on April 18, 1891, sold the goods to a third party, taking the purchaser's note for the sum of $2,000. In the interval between the date of the agreement with Mrs. Pitts and the final disposition of the merchandise, the husband, L. C. Pitts, had remained in possession, and had sold goods to the extent of several hundred dollars, and, it seems, had failed to account for the proceeds. The amount of the indebtedness secured by the deed in trust to Dunn was about $4,000 or more. The value of the goods was about $2,750. The indebtedness clearly exceeded the value of the merchandise.

Opinion.

The following conclusions will dispose, we...