Stell v. Paschal

• Decision Date: 01 January 1874
• Citation: 41 Tex. 640
• Parties: ROBERT M. STELL v. D. A. PASCHAL.
• Court: Texas Supreme Court

41 Tex. 640

ROBERT M. STELL

v.D. A. PASCHAL.

Supreme Court of Texas.

1874.

APPEAL from Smith. Tried below before the Hon. Z. Norton.

October 6, 1870, Daniel A. Paschal sued R. M. Stell, alleging that on 28th September, 1870, Stell “did wrongfully and forcibly take from the possession” of one James Horton, plaintiff's agent, a certain cotton press, the property of plaintiff, and which press Horton was hauling to Kaufman county from Tyler, in Smith county. Judgment was asked for the wagon, or its value, damages, &c.

Stell answered that he was the administrator of the estate of B. H. Hambrick, and, as such, he claimed the right to the possession of the cotton press, as against plaintiff, under three mortgages held by him as administrator, one executed by J. M. Douglas and one by G. W. Humphries to plaintiff's intestate, each for one hundred and nineteen ounces of gold coin; the other mortgage executed by Douglas and Humphries to Elizabeth Hambrick, widow of plaintiff's intestate, for fifty-nine ounces of gold coin, the mortgage having been given to her while administering, under the statute, the community property of her husband's estate. The mortgages appended to the answer conveyed certain lands and the interest of the mortgagors in a “steam mill, cotton gin and press, engine, boiler, machinery, and apparatus attached thereto or connected therewith, * * * and in all other machinery and improvements that may be hereafter placed therein or attached thereto.”

By amendment, plaintiff alleged special damages caused by the seizure of the cotton-press, in loss of gains from his gin for four months, plaintiff during said time being unable to procure a new press.

The testimony showed that, in August, 1870, Paschal bought of Humphries, agent of Douglas, the cotton press, worth $250; that in September following Humphries delivered it to Horton, a wagoner, to be hauled to Kaufman county for Paschal; that on the road Stell met Horton, learned that the cotton press had been taken from the factory lot, (included in the mortgages,) upon which he claimed it, and threatened prosecution against Horton if he did not surrender the property; that thereupon Horton left the press at Stell's; that afterwards Paschal demanded the press, informing Stell that he (Paschal) had bought it, and that it was his property; that defendant had retained possession of it until the time of the trial, (26th March, 1873;) that Paschal owned a fine Eagle-Saw gin in Kaufman county, run by steam power, capable of ginning from six to eight bags per day, and that he ginned and put up cotton in bales for the public; that he was unable to procure another cotton press during the ginning season of 1870, and that he had to haul his lint cotton that season to another cotton press in the neighborhood, to get it baled; that during that season he lost all his profits as a ginner and packer of cotton, amounting to about $750, in consequence of his failure to get the press he had bought of Douglas and his inability to procure another; that he paid Horton, the wagoner, seventy dollars for coming to Smith county for the press.

Defendant read the three trust deeds or mortgages as pleaded, and proved that B. H. Hambrick, John M. Douglas, and George W. Humphries were partners in the steam mill and factory in Tyler, Smith county, under the firm name of “B. H. Hambrick & Co.,” and that the property embraced in the mortgages to Hambrick, and the mortgage to Elizabeth Hambrick, his widow, was the property belonging to said firm in Tyler; that B. H. Hambrick died in 1868, and his said widow administered the community property for a time, and afterwards Stell had been appointed administrator; that the cotton press was erected on the premises of the said firm of B. H. Hambrick & Co., and was used as a press for bailing cotton by the “Tyler Manufacturing Company,” successors to B. H. Hambrick & Co.; that Douglas and Humphries were members of the “Tyler Manufacturing Co.;” that the cotton press was removed by plaintiff from said premises.

Stell testified that he acquired possession of the press from Horton, a wagoner, who said he was hauling it for Paschal; that he used no force to get it; that he told Horton he was liable to the law for moving the press from the county, and threatened to attach the press and wagon; that he used no fraud or force, but honestly believed he was doing his duty as administrator of B. H. Hambrick; that a few days afterwards Paschal exhibited Humphries' affidavit that the press was not included in the deeds of trust.

In rebutting, Paschal proved that the press had been temporarily put up on the Tyler Manufacturing Company's grounds for exhibition as a sample press to enable one B. K. Smith, who put it up, to sell the patent rights as agent of said press; that said press was a portable Brooks press, and had no connection with the Tyler Manufacturing Company, except to bail cotton as a specimen for said agent; that afterwards, in a settlement between Smith and Douglas, Douglas became the owner of the press and sold it to Paschal.

The charge of the court sufficiently appears in the opinion.

The verdict was “for the plaintiff the sum of two hundred and fifty dollars, which sum may be discharged by the defendant delivering to plaintiff the cotton press in dispute within ten days. We also find for the plaintiff the further sum of five hundred...