Prendergast v. Williamson

• Decision Date: 07 March 1894
• Citation: 26 S.W. 421
• Parties: PRENDERGAST et al. v. WILLIAMSON et al.
• Court: Texas Court of Appeals

26 S.W. 421

PRENDERGAST et al. v. WILLIAMSON et al.

Court of Civil Appeals of Texas.

March 7, 1894.

Appeal from district court, Limestone county; Rufus Hardy, Judge.

Action by Prendergast, Smith & Co. against A. C. Williamson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Gibson & Evans and H. L. Stone, for appellants. McKie & Autry, for appellee First Nat. Bank. O. T. Holt, for appellee Charles Dillingham.

LIGHTFOOT, C. J.

Appellants, Prendergast, Smith & Company, brought this suit in the district court of Limestone county against A. C. Williamson, W. H. Bessling & Co., the First National Bank of Corsicana, and Charles Dillingham, receiver of the Houston & Texas Central Railway Company, alleging that they advanced to defendant A. C. Williamson sums of money aggregating $1,715.40, with which to buy cotton, with the agreement that the cotton so purchased should stand as a pledge and security to plaintiffs for the money advanced by them, and, when sold, the proceeds should belong to plaintiffs, and should be paid over to them to the extent of all advances made. That about November 12, 1890, said Williamson had on hand 39 bales of cotton, so purchased, which, by agreement between himself and plaintiff, was sold to Bessling & Co. @ 8¼ cents per pound; that the purchasers (Bessling & Co.) made out, and gave to Williamson to have signed, bills of lading for the cotton, naming themselves as consignors and consignees, the cotton to be shipped over the Houston & Texas Central Railway to Galveston; it was agreed that the invoice of the cotton should be made, and bills of lading procured, and, upon delivery of the same, the money should be paid by Bessling & Co. to plaintiffs. That, after getting such invoice and bills of lading, said Williamson failed to carry out the agreement to deliver the same to plaintiffs or Bessling & Co., but, in order to defraud plaintiffs, delivered them to the First National Bank of Corsicana. Plaintiffs charge notice on the bank and the receiver of their rights, and that, with such notice, the receiver delivered the cotton to said bank, and they ask judgment for the value of the cotton. The defendant bank answered, claiming that, in the due course of trade, defendant Williamson, who was the owner of the cotton, procured from it an advance of $1,716.33 upon a draft on Bessling & Co., with the bills of lading for the cotton attached thereto, which they claimed to be a lien on said cotton; and that it had no notice, actual or constructive, of the claimed rights of plaintiffs, and that it subsequently procured the cotton under such bills of lading, and applied the same to said debt. The receiver answered by general denial. Williamson and Bessling & Co. failed to answer, and judgment by default was rendered against them. There was judgment in favor of the receiver and the First National Bank of Corsicana against plaintiffs, from which this appeal was taken.

The facts were substantially as follows: Prendergast, Smith & Co. are bankers at Mexia, Tex., and, in the year 1890, A. C. Williamson made arrangements with them to furnish him money to buy cotton at Richland station, upon the following terms: He was to invest all the money furnished him in cotton, which was to be held subject to their order, and sold under their direction, and they were to have a lien upon it to secure the advances made under this arrangement, which was verbal. Williamson had bought 39 bales of cotton with money so furnished by appellants, and, cotton having declined in price, they insisted upon its being sold. It was contracted to be sold by Williamson, under the direction of appellants, to Bessling & Co. @ 8¼ cents per pound, and it was by all three parties agreed that the money should be paid to appellants. The bills of lading were made out by Bessling & Co., at Mexia, to themselves, as consignors and consignees, and delivered to Williamson, who was to go to Richland, have the cotton invoiced and shipped to Galveston, and the bills of lading signed up and returned to appellants, and, upon the delivery of same to Bessling & Co., they were to pay the money to appellants. Williamson took the bills of lading to Richland, had the cotton invoiced and shipped, — Bessling & Co. being named as consignors and consignees of the 38 bales, and as consignees of the 1 bale, — and the bills of lading were signed up by the agent of the receiver at that place November 10, 1890, shipping 38 bales to Galveston and 1 bale to Mexia; but, instead of sending the bills of lading to appellants, as he had agreed to do, Williamson took them to Corsicana, and made a negotiation with the First National Bank of Corsicana, whereby it advanced him $1,716.33 upon the cotton, and he executed to the said bank his draft on Bessling & Co. for that amount, with bills of lading attached for the cotton. This draft, with bills of lading attached, was promptly sent by said bank to Prendergast, Smith & Co., at Mexia, for presentation to Bessling & Co. The draft was presented by appellants, who at the same time notified Bessling & Co. that there was something wrong about it; and appellants on the same day telegraphed the First National Bank of Corsicana of their claim to the cotton. Bessling & Co. did not pay the draft, and did not set up any further claim to the cotton. This suit was brought November 25, 1890. After the institution of this suit, the cotton was delivered by the receiver to the First National Bank of Corsicana, upon the bills of lading, and sold for its account for less than the amount advanced by it to Williamson.

The leading questions presented by appellants in their brief are under the fourth and fifth assignments of error, as follows: "(4) The court erred in that part of the charge to the jury in which they were told that, under the law applicable to the facts in evidence, appellants (plaintiffs below) had no right to recover against the defendant, the receiver of the Houston & Texas Central Railway Company, and instructing the jury to find for said defendant. (5) The court erred in that part of the charge to the jury in which they were told that, under the law applicable to the facts in evidence, the appellants (plaintiffs below) had no right to recover of the defendant, the First National Bank of Corsicana, and in instructing the jury to find a verdict for said defendant." If these two charges were correct, it will be useless to consider the other assignments presented, as they will settle the controversy. Where, under the most favorable view that can be taken of the testimony, the plaintiff is not entitled to recover, it is not improper for the court to charge the jury to find a verdict for the defendant. Eason v. Eason, 61 Tex. 225; Teal v. Terrell, 58 Tex. 257.

The first questions for us to examine are: Did the appellants, under their contract with Williamson, acquire a valid lien upon the cotton, and, if so, did these appellees have notice of it? It is not claimed by the appellants that they acquired ownership of the cotton....