Southwestern Surgical Supply Co. v. Scarborough

• Decision Date: 07 March 1929
• Docket Number: (No. 2284.)
• Citation: 15 S.W.2d 65
• Parties: SOUTHWESTERN SURGICAL SUPPLY CO. v. SCARBOROUGH.
• Court: Texas Court of Appeals

Page 65

15 S.W.2d 65

SOUTHWESTERN SURGICAL SUPPLY CO. v. SCARBOROUGH.

(No. 2284.)

Court of Civil Appeals of Texas. El Paso.

March 7, 1929.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by the Southwestern Surgical Supply Company against Dr. Walter E. Scarborough, in which defendant filed a plea of privilege. The plea of privilege was sustained, and plaintiff appeals. Affirmed.

Isaacks & Lattner, of El Paso, for appellant.

A. T. Folsom, of Wink, for appellee.

HIGGINS, J.

On March 1, 1928, appellee purchased from appellant, a partnership, certain chattels consisting of an X-ray unit, a diathermy machine, a Castle combination sterilizer, 12 hospital beds and mattresses, and certain surgical instruments and supplies. The purchase price was $2,334.03, to cover which appellee paid part cash, and executed eleven notes for $150 each, and one for $184.03, all dated March 5, 1928, and payable to appellant. The first note was due one month after date and one matured monthly thereafter. The notes were payable at El Paso, Tex. The payment of the notes was secured by mortgage upon the property sold. The mortgage contained a provision, the effect of which was that, if at any time the payee of the notes felt unsafe or insecure, then at its option appellee could declare all of the notes due and payable.

Later appellant sold to appellee other goods, wares, and merchandise, and upon the purchase price thereof there was a balance due of $825.83 at the time this suit was filed.

This suit was filed July 16, 1928, to recover said balance of $825.83, due upon open account, and also to recover upon the eight notes last maturing; the first four having been paid as they fell due.

It was alleged that plaintiff felt unsafe and insecure and had exercised its option in such case to declare all the notes due as authorized by the mortgage.

Judgment was sought for the amount due upon the open account and notes and for foreclosure of the chattel mortgage.

Appellee filed plea of privilege to be sued in Winkler county, where he resides. The plea is in statutory form with additional allegations to the effect that the notes sued upon were not due; that no ground existed for accelerating maturity; that the allegations respecting the acceleration of their maturity were fraudulent, and suit upon such notes was joined with suit upon the open account for the fraudulent purpose of depriving defendant of his right to be sued upon the open account in the county of his residence.

Controverting affidavit was filed by plaintiffs setting up that the notes were payable in El Paso, the accelerating maturity clause of the mortgage, that plaintiffs felt unsafe and insecure in said indebtedness, and had exercised the option to mature the notes.

Upon hearing the plea of privilege was sustained. Findings of fact were not filed by the trial court.

S. C. Carter, one of the members of the appellant firm, testified: "I am inclined to think, if he hadn't owed us this $825.83, I would have been contented to go ahead and receive the payments on the equipment, because I offered him, shortly before filing suit, I think about ten days, on a previous trip, to discount this Eight Hundred and whatever it was, the amount of the open account, five per cent., as I didn't want any trouble with him and wanted to get the thing closed up, and I offered him that discount as an inducement to pay his open account, feeling sure he had the money available with which to pay it. As to whether it is a fact that we accelerated these notes in order to compel him to pay the open account, that the open account was what we were mainly after — I will say, of course, yes, that was partly the reason, but we didn't want him to walk off and leave this merchandise on our hands, either, even though it was worth more than fifty per cent. * * * Even if we could have...