Schmick v. Bateman

• Decision Date: 20 May 1890
• Parties: SCHMICK <I>et al.</I> v. BATEMAN.
• Court: Texas Supreme Court

Page 22

14 S.W. 22

SCHMICK et al. v. BATEMAN.

Supreme Court of Texas.

May 20, 1890.

Appeal from district court, Eastland county.

Wray & Stanley, for appellants. J. H. Calhoun and West & McGown, for appellee.

STAYTON, C. J.

On August 27, 1883, and for some time prior to that date, B. R. Ramey did a mercantile and other business in the name of his wife, A. C. Ramey, and there is no claim that Mrs. Ramey had separate estate. On that date the husband made a contract in the name of his wife, whereby he bound her in terms, to sell and deliver to the Mills Cattle Company a certain number of cattle, at a fixed price, by October 1, 1883. When that contract was executed in the name of the wife by the husband he received in advance $3,000; and, to secure the cattle company, he executed a bond in the sum of $5,000, in the name of his wife, on which appellee and others became sureties. The contract to deliver cattle was not complied with, but the time for delivery was extended, the sureties consenting to this. The time for delivery under this last agreement having expired without compliance with the contract, Bateman sought indemnity against his liability. To give this, Ramey, in the name of his wife, executed an instrument, through which the stock of merchandise out of which this litigation grew was transferred to Bateman for the express purpose of protecting him against loss on account of his suretyship. It authorized Bateman to take possession of the stock of merchandise, valued at about $1,600, and to sell it in usual course of business, from the proceeds paying necessary expenses, and balance to be deposited in some safe place until an adjustment should be made between the cattle company and Ramey of all matters growing out of the breach of contract to sell and deliver cattle. Bateman was further empowered to replenish the stock out of proceeds of sale in so far as was necessary to keep up the business, and it was provided, in event that Bateman should not be relieved from liability as surety for Ramey, that he might sell the goods at auction, and apply the proceeds so far as necessary to discharge his obligation as surety; but if he was relieved from liability he was to return the unsold stock and proceeds of sales in so far as not expended for purposes contemplated by the instrument. Under this agreement, which was properly recorded, Bateman took possession of the goods, when a few days afterwards Martin Brown Co., to whom Ramey was indebted, brought...