Trans-Continental F. Co. v. Packard North Texas M. Co.

• Decision Date: 22 November 1928
• Docket Number: (No. 2185.)
• Citation: 11 S.W.2d 362
• Parties: TRANS-CONTINENTAL FREIGHT CO. v. PACKARD NORTH TEXAS MOTOR CO.
• Court: Texas Court of Appeals

11 S.W.2d 362

TRANS-CONTINENTAL FREIGHT CO. v. PACKARD NORTH TEXAS MOTOR CO.

(No. 2185.)

Court of Civil Appeals of Texas. El Paso.

November 22, 1928.

Appeal from County Court at Law, No. 2, Dallas County; Wm. M. Cramer, Judge.

Suit by the Packard North Texas Motor Company against Emil Velazco and another, in which the Trans-Continental Freight Company intervenes. From the judgment, intervener appeals. Reversed and rendered.

Crane & Crane, of Dallas, for appellant.

Leachman & Gardere, of Dallas, for appellee.

PELPHREY, C. J.

On February 15, 1924, Emil Velazco purchased from appellee one Marmon Chummy Roadster automobile, motor No. 821081, and gave in part payment therefor 11 notes in the sum of $60.61 each; the first note being due and payable on the 15th day of April, 1924, and one due on the 15th day of each month thereafter until all notes should be paid. Simultaneously Velazco also executed a chattel mortgage on said car in favor of appellee, and the same was duly filed in the office of the county clerk of Dallas county, Tex. Velazco failed to pay the first note on its due date, and appellee declared the whole series due, and placed the notes in the hands of an attorney for collection. On April 21, 1924, Velazco delivered the car to appellant at Chicago, Ill., with directions to ship same to him at Dallas, Tex., agreeing to pay appellant for its services rendered in the shipping as well as any freight charges advanced by it. Appellant, pursuant to Velazco's directions, shipped the automobile to its agent, Interstate Forwarding Company, at Dallas, Tex., with instructions to deliver the car to Velazco upon the payment of its charges amounting to $210.66.

While the car was in the possession of the Interstate Forwarding Company, it was sequestered by appellee.

Later the Packard North Texas Motor Company applied for a sale of the car on the ground that same was becoming greatly depreciated in value. The application was granted, and the appellee purchased the car for a nominal sum, but agreed with appellant that, in the event the court should later hold appellant's lien superior to that of appellee, judgment might be rendered against it for the sum of $210.

Appellee filed suit against Velazco and the Interstate Forwarding Company on the notes and to foreclose its lien thereon, alleging that the Interstate Forwarding Company was in possession of the car.

Appellant intervened, setting up its claim for $210.66, praying for a judgment therefor and a foreclosure of its lien, that the car be sold, and the proceeds be applied to the payment of it debt before appellee be allowed to participate therein.

Velazco was cited by publication but made no appearance, and the Interstate Forwarding Company, having filed a disclaimer, was dismissed from the suit.

The following facts were agreed to by the parties as provided at a trial of the cause:

"The parties agree that at the time the automobile described in plaintiff's petition was taken to Chicago, there was a valid mortgage duly recorded and in force, as alleged, and described in plaintiff's petition.

"That the said automobile was taken to Chicago by the owner, Emil Velazco, defendant in this suit, without the knowledge or consent of the mortgagee, Packard North Texas Motor Company, plaintiff herein, and was by said Velazco delivered to intervener, Trans-Continental Freight Company, with request that said car be shipped to said Velazco as consignee at Dallas, Texas, care of the plaintiff, Packard North Texas Motor Company, said Velazco agreeing to pay intervener the charges necessary for the shipment of said automobile to Dallas, Texas; and that said charge amounted to the sum of two hundred ten ($210.00) dollars, and were reasonable and necessary.

"That intervener herein, Trans-Continental Freight Company, had no actual notice of the existence of the mortgage described in plaintiff's petition at the time it accepted said automobile for shipment and forwarded same to Dallas, Texas.

"That said automobile was shipped by intervener to Interstate Forwarding Company at...