"The court of civil appeals of the Third supreme judicial district of Texas certifies that the above styled and numbered cause on appeal from the county court of Travis county, Texas, is now pending in the court of civil appeals, and states that the appellee's cause of action is for damages alleged to have been sustained by reason of the defendant's agent entering the place of business of plaintiff, in the city of Austin, and there and then taking possession of a certain sewing machine which defendant had sold to the plaintiff on the installment plan. The damages alleged are $65, the value of the machine; that his business as a merchant tailor has been interfered with and obstructed, and that he has been deprived of the use of the machine; and that, on account of being deprived of the same, the work done by him has been greatly decreased,— with amount of actual damages alleged to be $250, with also a claim for exemplary damages at $200. Among other facts pleaded in the defendant's answer, there are averments to the effect that the sewing machine was sold to the plaintiff on the installment plan, and that there was then due on the same a certain amount, which was unpaid, and that at the time of sale a mortgage was retained on the machine to secure the amount that may become due, and that there was a stipulation in the mortgage which authorized the defendant to take possession of the sewing machine, either with or without process of law; that the plaintiff had failed and refused to pay the unpaid purchase money when due; and that the machine was taken quietly and peaceably, without the use of force, by virtue of this stipulation in the mortgage, which is as follows: `If said mortgagor shall fail to pay any installment as it becomes due, then all said installments unpaid shall at once become due and payable, and said mortgagee, or its representatives, shall have the right, and is hereby authorized and empowered, to take possession of said goods and chattels, with or without process of law; said mortgagor hereby waiving any claim or action for trespass or damage on account of said taking.' It is contended by the defendant that under this provision in the mortgage it took the machine, and that it was authorized to take the same, and this fact was pleaded as a defense to the plaintiff's
cause of action. The trial court sustained a demurrer to so much of the defendant's answer as sought to justify the taking by virtue of the above provision in the mortgage, but submitted to the jury the issue as to whether or not the machine was taken from the possession of the plaintiff by and with the consent of the plaintiff, and, if such was the case, to find in favor of the defendant. The defendant, upon the trial of the case, asked a charge, which was by the court refused, presenting to the jury the issue as pleaded,—that the defendant had authority to take possession of the machine by virtue of the agreement contained in the mortgage, as above set out. There is evidence in the record which shows that the machine was taken from the building occupied by the plaintiff as a tailor shop without his consent, and against the express wishes of the party in whose possession it was at the time it was taken; that the machine was then in use by the plaintiff in his business as a tailor. And there is also evidence which tends to show that the defendant, in taking the machine, used no force or violence, and no breach of the peace was committed at that time. It also appears as a fact that at the time the machine was taken there was a balance due the defendant, as a part of the purchase price of the machine. It is also pleaded, and there is evidence to sustain the averments, that the machine was taken by the defendant for the purpose of enforcing the provision of its mortgage and lien on the machine. Verdict and judgment in the trial court were in favor of the plaintiff on all of the items of damages claimed, with a credit in favor of the defendant for the balance due upon the machine; and for the balance remaining, judgment was rendered in plaintiff's favor.
"Under the above statement, the court of civil appeals for the Third supreme judicial district of Texas certifies to the supreme court of Texas the following question: Although the taking of the machine at the time was without the consent of the plaintiff, did the stipulation contained in the mortgage, as above quoted, authorize the defendant to enter the place of business of the plaintiff and take actual possession of the machine, without then and there first obtaining the permission and consent of the plaintiff? In other words, did the consent given in the provision of the mortgage quoted authorize the taking, where it is, as here, shown by the facts that no force or violence or breach of the peace was committed in taking the machine? And if such...
