Soell v. Haddon

• Decision Date: 07 June 1892
• Citation: 19 S.W. 1087
• Parties: SOELL v. HADDON.
• Court: Texas Supreme Court

19 S.W. 1087

SOELL v. HADDON.

Supreme Court of Texas.

June 7, 1892.

Commissioners' decision. Section B. Error from district court, Kendall county; T. M. PASCHAL, Judge.

Suit by E. E. Soell against Robert G. Haddon to recover possession of a horse or its value. Judgment for defendant. Plaintiff brings error. Reversed.

Tarleton & Keller, for plaintiff in error. Wm. Aubrey, for defendant in error.

GARRETT, P. J.

This action was brought by the plaintiff in error, E. E. Soell, in the district court of Kendall county, November 15, 1886, against the defendant in error, Robert G. Haddon, for the recovery of a certain stallion, or his value, which was alleged to be $500, and for damages. Plaintiff alleged that on or about August 3, 1885, he pledged and mortgaged the stallion to the defendant to secure the payment of a debt of $145; that possession of said stallion was delivered to the defendant solely for the purpose of securing said indebtedness, which had been fully paid off and satisfied; but the defendant wrongfully refused to deliver up and return the stallion to the plaintiff, and defendant deprived him of the value of said animal, to his damage $50 a month. Plaintiff prayed for restitution of the horse, and in the alternative for his value, and for damages for his detention. Defendant pleaded in answer that the instrument was a conditional bill of sale, and not a mortgage; that it was executed to secure the punctual payment of plaintiff's note for $145, dated July 31, 1885, payable by defendant to plaintiff or order one month after date; that when the note became due demand was duly made of plaintiff for the payment thereof, but plaintiff failed to pay the same, and defendant elected to keep the horse, and cancel and return the note, which he did. Defendant prayed that the title to the horse be decreed to him, for general relief, and that, if plaintiff should be allowed to recover, defendant have judgment for $150 for the care of the horse, and the amount of the note and interest. The instrument under which the defendant claimed title was made an exhibit to the defendant's answer, and is as follows: "The state of Texas, county of Kendall. Know all men by these presents, that I, the undersigned, Ed. E. Soell, of the county of Kendall and state of Texas, for and in order to secure the full and punctual payment of a certain promissory note, dated Comfort, Kendall county, Texas, July 31, 1885, drawn by me, the undersigned, Ed. E. Soell, to my own order, and by me indorsed for the sum of one hundred and forty-five ($145) dollars, with ten per cent. per annum interest from date until paid, payable one month after date to Robert G. Haddon or order, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto Robert G. Haddon, of the county of Kendall, state of Texas, a certain horse [describing it] now in possession of A. Bodemann, Esq., sheriff of Kendall county, Texas; to have and to hold said horse above bargained and sold, or intended so to be, unto the said Robert G. Haddon, his executors, administrators, and assigns, forever. And I, the undersigned, Ed. E. Soell, for myself, my heirs, executors, and administrators, will warrant and defend the title to the aforesaid horse unto the said Robert G. Haddon, his executors, administrators, and assigns, against all and every person or persons whomsoever; upon condition that I, the said Ed. E. Soell, aforesaid, shall well and truly pay, at maturity, the full amount, principal and interest, of the aforesaid promissory note, executed by myself, for the sum of one hundred and forty-five dollars, with interest at ten per cent. per annum from date, dated Comfort, Kendall county, Texas, July 31, 1885, payable to said Robert G. Haddon or order, one month after date, then these presents, and everything herein contained, shall cease and be void; otherwise to remain in full force and effect. It is hereby understood and agreed that the said Robert G. Haddon shall take at once into his possession the said horse from the date hereof until the date when the note herein described and referred to shall become due and payable, at which time, to wit, the date of payment of said note, if said note, with interest and costs, be fully paid and extinguished, then the said Robert G. Haddon to turn over said horse to me, the said Ed. E. Soell. But if said note, with interest and cost aforesaid, be not fully paid and extinguished at the maturity thereof, then the title and property to and in said horse to fully vest in the said Robert G. Haddon without the necessity of having recourse to any legal proceedings or process of law or bill of sale to secure to said Robert G. Haddon the full and entire ownership of said horse; it being the intent that, should said note be not full paid and extinguished at the maturity thereof, this instrument and these presents shall be in lieu and stead of a bill of sale to said horse for the said Robert G. Haddon, and shall fully warrant the said Robert G. Haddon selling or otherwise disposing of said horse, or in any way to apply the same to the payment of said note. It is further understood that, pending the payment of the above-described note, and during said provisional possession of said horse by the said Robert G. Haddon, should any accident or injury befall said horse without the fault or negligence of the said Robert G. Haddon, then the said R. G. Haddon shall be held blameless, and, for the safe-keeping and board of said horse pending the provisional possession of said horse by said Robert G. Haddon, he, the said Haddon, shall be entitled to and receive just and reasonable compensation, should he so desire. In testimony whereof I, the said Ed. E. Soell, hereunto set my hand and seal this 3d day of August, A. D. 1885. [Signed] E. E. SOELL." Trial was had before a jury, April 27, 1887, and resulted in a verdict and judgment for the defendant. A motion for a new trial was filed, which the court overruled; a statement of facts was made and filed; and the case is before the supreme court on writ of error.

The debt was incurred for money borrowed of the defendant to satisfy an execution against the plaintiff, which had been levied on the...