Trabue v. Wade & Miller

• Decision Date: 28 February 1906
• Citation: 95 S.W. 616
• Parties: TRABUE v. WADE & MILLER et al.
• Court: Texas Court of Appeals

95 S.W. 616

TRABUE v. WADE & MILLER et al.

Court of Civil Appeals of Texas.

February 28, 1906.

On Rehearing, March 28, 1906.

Appeal from District Court, Panola County; Richard B. Levy, Judge.

Action by Wade & Miller against G. A. Davison and others. From a judgment in favor of plaintiffs, defendant, R. E. Trabue, appeals. Affirmed.

W. R. Anderson, for appellant. J. G. Woolworth and A. G. Brooke, for appellees.

FLY, J.

Wade & Miller sued G. A. Davison, T. J. Kyle, and appellant, R. E. Trabue, to recover the sum of $458.30, and to foreclose a chattel mortgage on certain machinery of the value of $1,175. The debt was evidenced by a promissory note for $1,175, executed by Davison & Kyle and payment of which, it was alleged, had been assumed by appellant, who had bought the machinery from Davison & Kyle. The cause was tried by jury and resulted in a verdict for Wade & Miller against Davison & Kyle for $415.27, and for a foreclosure of the lien on the machinery, and in favor of Davison & Kyle against appellant for the sum of $415.27.

The first and second assignments of error question the sufficiency of the evidence to sustain the verdict against appellant. It clearly appears from the evidence that appellant bought the machinery from Davison & Kyle and agreed, as a part consideration for it, to pay the debt due by his vendors to Wade & Miller. The mortgage on the machinery was filed before the sale to appellant, and appellant was charged with notice of it, and he assumed the debt on the machinery with full knowledge of the mortgage. Not only that, but appellant was informed by Miller and by Davison of the existence of the mortgage. The evidence was sufficient to establish the indebtedness of $415.27 against appellant.

Through the third assignment of error it is urged that the court erred in presenting the issue of appellant's actual knowledge of the existence of the mortgage, because such issue was not raised by pleadings or evidence. Appellant alleged in his answer that "he had no knowledge actual or constructive of the lien claimed and set up by plaintiffs" at the time that he purchased the property. He raised the issue himself by his pleading, and there was evidence tending to show that he had actual knowledge of the mortgage. He repeated his pleading on the issue in a trial amendment. The paragraph of the charge in question is not attacked on any other grounds. Appellant agreed to pay the debt due by Davison and Kyle to Wade & Miller and thereby became liable to pay the attorney's fees provided for in the note. It is true that Wade & Miller agreed that the property might be sold by Davison & Kyle to appellant, but positively refused to release their mortgage on the property. There was no waiver of the mortgage but it was expressly retained.

The judgment is affirmed.

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