Sweeney v. Taylor Bros.

• Decision Date: 17 January 1906
• Citation: 92 S.W. 442
• Parties: SWEENEY v. TAYLOR BROS. et al.
• Court: Texas Court of Appeals

92 S.W. 442

SWEENEY v. TAYLOR BROS. et al.

Court of Civil Appeals of Texas.

January 17, 1906.

Appeal from Harris County Court; Blake Dupree, Judge.

Action by E. E. Taylor and others, partners as Taylor Bros., against J. J. Sweeney and others. From the judgment rendered, defendant Sweeney appeals. Reversed in part.

Brockman & Kahn, for appellant. A. E. Amerman, for appellees.

PLEASANTS, J.

Appellees, Taylor Bros., a firm composed of E. A. Taylor, C. W. Taylor, and F. C. Taylor, brought this suit against Addie Humphreys, Abe Humphreys, and appellant, to recover against Addie Humphreys the sum of $265, the alleged unpaid balance of the purchase price of a diamond ring sold by plaintiff to said defendant, and to foreclose a chattel mortgage upon said ring against all of the defendants, or, in the alternative, to recover possession of the ring on the ground that Addie Humphreys obtained its possession by fraud and misrepresentation, and that any title which the other defendants may assert thereto was acquired with notice of plaintiff's rights and is therefore invalid. The petition alleges, in substance, that plaintiff sold and delivered to Addie Humphreys on or about February 15, 1904, the diamond ring involved in this suit, which is fully described in the petition, for the agreed price of $325, which was its reasonable value; that said defendant paid plaintiff for the ring the sum of $50 cash and executed and delivered to plaintiff her written contract, wherein she agreed to pay the further sum of $275 in weekly installments of $10 each, and to secure the performance of said contract executed and delivered to plaintiff a chattel mortgage upon said ring, which mortgage was on said date duly registered in the chattel mortgage records of Harris county; that said defendant paid the sum of $10 on said contract, and there is now due and unpaid thereon a balance of $265, with interest and attorney's fee, for which amount judgment is prayed. It is further alleged that the defendant Abe Humphreys is claiming to be the husband of Addie Humphreys, and that defendant Sweeney is asserting some claim or title to the ring, and judgment is asked against all of the defendants foreclosing the alleged chattel mortgage upon the ring. It is further alleged that plaintiff had no knowledge, at the time the ring was sold to Addie Humphreys, that she was a married woman, and that she represented to plaintiff's agent that she was unmarried, and thereby induced him to sell and deliver the ring to her, and that, if she was in fact married at that time, she obtained possession of said ring by fraud and misrepresentation, and therefore title to same did not pass by said contract of sale, and plaintiff is entitled to recover its possession from all of the defendants. It is further alleged that, if the defendant Sweeney ever acquired possession of the ring, he got it from a person who had no right to its possession and no authority from Addie Humphreys to dispose of it, and therefore he acquired no title thereto as against Addie Humphreys or the plaintiff. There is a prayer in the alternative for the recovery of the ring against all of the defendants, in event the court should find that the mortgage may be invalid by reason of the fact that at the time of its execution the said Addie Humphreys was a married woman. The defendant Sweeney denied generally the allegations of plaintiff's petition, and pleaded specially that Addie Humphreys was a married woman at the time she executed the mortgage, and the record of such mortgage was not notice to him, and that he was a purchaser for value of the ring in question, without any notice of plaintiff's claim. The defendant Addie Humphreys was non compos mentis at the time of the trial, and was represented by a guardian ad litem. The answer of the guardian ad litem contains a general denial of the averments of defendant Sweeney's answer, and specially avers that the ring is the separate property of said Addie Humphreys, and that the person from whom the defendant Sweeney acquired it was not authorized to dispose of it. This answer further admits the truth of the allegations of plaintiff as to the sale of the ring for the sum of $325, and the payment of $60 of said sum, but seeks to avoid the payment of the balance due on the contract, on the ground that Addie Humphreys has since its execution become of unsound mind. The prayer of the answer is for the recovery of the ring as against the defendant Sweeney, and, in event the plaintiff should be held entitled to a foreclosure of the mortgage, that this guardian have judgment against plaintiff for the $60 paid upon said contract. The cause was tried by a jury, and verdict and judgment rendered in favor of plaintiff for the amount claimed in the petition, with foreclosure of the mortgage upon the ring, and in favor of Addie Humphreys for the recovery of the ring against the defendant Sweeney. The court instructed a verdict in favor of defendant Abe Humphreys, and judgment was rendered accordingly.

Appellant's fifth assignment of error complains of the ruling of the trial court in refusing to allow him, in the...