Universal Credit Co. v. Gasow-Howard Motor Co., 2528.

• Decision Date: 28 June 1934
• Docket Number: No. 2528.,2528.
• Citation: 73 S.W.2d 909
• Parties: UNIVERSAL CREDIT CO. v. GASOW-HOWARD MOTOR CO. (PHELAN, Intervener).
• Court: Texas Court of Appeals

Page 909

73 S.W.2d 909

UNIVERSAL CREDIT CO. v. GASOW-HOWARD MOTOR CO. (PHELAN, Intervener).

No. 2528.

Court of Civil Appeals of Texas. Beaumont.

June 28, 1934.

Rehearing Denied June 30, 1934.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Action by the Universal Credit Company against the Gasow-Howard Motor Company, in which J. H. Phelan intervened. From an adverse judgment, plaintiff appeals.

Affirmed.

Bryan, Suhr, Bering & Bell and Rodman S. Cosby, all of Houston, for appellant.

Jas. A. Harrison and R. E. Masterson, both of Beaumont, for appellees.

WALKER, Chief Justice.

On February 18, 1932, in the district court of Jefferson county, appellant, Universal Credit Company, filed this suit against Gasow-Howard Motor Company to recover the title and possession of twenty-two secondhand and fifteen new Ford automobiles. On the same day appellant sued out a writ of sequestration under which it had the sheriff of Jefferson county seize all but one each of the secondhand and new automobiles. On March 1, 1932, upon delivery to the sheriff of its replevin bond, appellant received from him all the seized automobiles and, thus having them in its possession, sold all of them and appropriated all the proceeds of the sale. On March 21, 1932, the defendant filed its answer, consisting of general demurrer and general denial. On March 1, 1932, appellee J. H. Phelan filed his petition in intervention, claiming a landlord's lien against all the automobiles to secure him in the payment of past due rent in the sum of $4,000, and rent to mature in the future amounting to $10,000, due him by the defendant under a rent contract covering the premises in which the automobiles were stored and had been stored for sometime prior to their seizure under the writ of sequestration; pleading further the value of the automobiles when seized and that appellant had converted them to its own use and benefit. His prayer was for judgment against the defendant for the amount of the rent due and to become due, and against appellant for the value of the automobiles as and when they were converted by appellant. Appellant replied to the intervention by general demurrer, general denial, and by special denial that it had converted the automobiles, and by special denial that appellee had a landlord's lien on them to secure him in his rent. Appellant pleaded further that, if it was not the owner of the automobiles, it held against them a chattel mortgage lien to secure it in an indebtedness fully described in its supplemental petition; that appellee had either actual or constructive knowledge of its chattel mortgage lien and, therefore, its lien was superior to appellee's lien; and further for general and special relief. On April 22, 1933, all the rent sued for by appellee had matured and on that date he filed his trial amendment, praying for judgment "as prayed for in his original petition of intervention and for such other and further relief, in law and in equity, general and special," to which he was entitled. On the trial the jury found that, at the time appellant replevied the automobiles, the value of the secondhand automobiles was $4,475 and the value of the new automobiles $7,750; that the amount of the rent due by the defendant to appellee was $13,108.47, which covered the rent from November 1, 1931, to December 31, 1932; that at the time appellant took possession of the automobiles the past-due rent amounted to $4,000; that appellee had not canceled his lease contract with defendant, whereby it held the premises and under which the rent sued for was due. The instruments which appellant offered in evidence as constituting its chattel mortgage lien were not of record in Jefferson county; the jury found that appellee had neither actual nor constructive notice of the existence of these instruments. Appellant offered in evidence certain trust receipts issued to it by defendant covering the secondhand automobiles; on the issue of their validity the jury found that the secondhand automobiles were the property of defendant and not of appellant. The jury also found that the allegations of appellant's affidavit for sequestration that it "was the true and lawful owner of the new automobiles" was false, and also that the allegation in the affidavit for sequestration that it had a chattel mortgage lien against the secondhand automobiles was false. On the verdict and the undisputed evidence judgment was entered in favor of appellant against the defendant for $6,540 with foreclosure of its chattel mortgage lien against the fourteen new automobiles, but that it had no chattel mortgage lien against the secondhand automobiles. Judgment was entered in favor of appellee against the defendant for the sum of $13,108.47, being the rent due prior to January 1, 1932, and the rent for "the period of time beginning January 1, 1932, and ending December 1, 1932, same being the current contract year as shown in the lease"; and that appellee had a valid landlord's lien against all the automobiles to secure him in the payment of his rent. Appellee was awarded judgment against appellant that it had converted both the new and secondhand automobiles and that it "had sold same and that said cars could not be produced or returned." On these fact findings appellee was awarded judgment against appellant for the...