San Antonio Brew'G Ass'n v. Arctic Ice-Mach. Manuf'G Co.

• Decision Date: 19 May 1891
• Citation: 16 S.W. 797
• Parties: SAN ANTONIO BREWING ASS'N v. ARCTIC ICE-MACHINE MANUF'G CO. <I>et al.</I>
• Court: Texas Supreme Court

16 S.W. 797

SAN ANTONIO BREWING ASS'N v. ARCTIC ICE-MACHINE MANUF'G CO. et al.

Supreme Court of Texas.

May 19, 1891.

Commissioners' decision. Appeal from district court, Bexar county; G. H. NOONAN, Judge.

H. E. Barnard and Oscar Bergstrom, for appellant. John A. & N. O. Green and C. Upson, for appellees.

HOBBY, J.

September 12, 1883, appellee the Arctic Ice-Machine Manufacturing Company entered into a contract with one J. B. Belohradsky, the original defendant below, to construct and deliver to him certain apparatus or machinery for the cooling of beer and the manufacture of ice, upon the express condition, set forth in the contract of sale, that the vendor should not part with the title and ownership of the same until fully paid for. Belohradsky made default in the payment of the notes as they matured, which he had executed to secure the payment of the balance due on the ice-machine. After a correspondence extending through several months, in 1884 and 1885, by the appellee with Belohradsky, urging the payment of the amount due, on May 29, 1886, the appellee instituted its suit against Belohradsky on three notes, amounting to $6,502.56, besides interest given for the balance due on the purchase of said machinery, alleging that the same was a lien thereon under said contract, and prayed judgment accordingly. On September 11, 1886, Belohradsky made an assignment of all his property for the benefit of his creditors to R. P. Tendick as assignee, and February 1, 1887, said assignee sold the property in question to the appellant. Belohradsky answered, alleging, specially, that the ice-machine and attachments were purchased for and intended to be erected in a brewery plant, then being constructed by him, and that the same had become a fixture, and that since the machine had been so erected he had made an assignment for the benefit of his creditors to R. P. Tendick as assignee, and therefore had no further interest in the property. The appellant, the San Antonio Brewing Association, intervened, setting up the fact that the machine and attachments had become part of the realty, and that appellant had become the purchaser of the property and brewery plant from R. P. Tendick, the assignee of J. B. Belohradsky; and that the plaintiff had never fixed any lien thereon, as provided by law, which could be binding upon said property as against the defendant, or any of his creditors, or any purchaser, and that the intervenor had no notice, actual or constructive, of any such claim or lien; and prayed for judgment freeing the property from any lien or claim of the plaintiff. The cause was tried on April 14, 1888, and verdict and judgment rendered in favor of the appellee the Arctic Ice-Machine Manufacturing Company, against appellee J. B. Belohradsky for the sum of $6,435, with a foreclosure of the lien on the machinery and attachments.

The first ground relied on for a reversal is the refusal of the court to give the special instruction requested by appellant, to the effect that, if Belohradsky held possession of the machinery for two years or more, and during that time the appellee failed to record the contract, and make demand and prosecute suit for the possession of the property, and appellant is a purchaser from Belohradsky or his assignee, Tendick, the appellee, lost his lien, and appellant was entitled to recover. The statute (article 2468, Rev. St.) invoked in support of this position is substantially that, where any...