West Texas Utilities Co. v. Nunnally

• Decision Date: 19 October 1928
• Docket Number: (No. 487.)
• Parties: WEST TEXAS UTILITIES CO. v. NUNNALLY.
• Court: Texas Court of Appeals

10 S.W.2d 391

WEST TEXAS UTILITIES CO. v. NUNNALLY.

(No. 487.)

Court of Civil Appeals of Texas. Eastland.

October 19, 1928.

Appeal from Eastland County Court at Law; Tom Cunningham, Judge.

Suit by the West Texas Utilities Company against J. H. Nunnally, in which defendant filed a counterclaim. Judgment for plaintiff was reduced by the amount of defendant's counterclaim, and plaintiff appeals. Reversed, and cause remanded.

Barker & Orn, of Cisco, for appellant.

J. L. Alford, of Rising Star, for appellee.

LESLIE, J.

In this suit the plaintiff, West Texas Utilities Company, sued the defendant, J. H. Nunnally, for the unpaid balance of a note and to foreclose a mortgage on a Frigidaire machine which the former sold the latter, and against which it reserved a lien to secure the payment of the note. Judgment was in favor of the plaintiff on special issues, but such recovery was reduced by the amount of a counterclaim set up by the defendant. The plaintiff appeals, and by three groups of assignments contends: (1) That its special exception to the counterclaim should have been sustained because that claim was in violation of article 2017 of the Revised Statutes, in that the defendant was attempting to set off against the plaintiff's certain demand, unliquidated or uncertain damages founded on a tort or breach of covenant; (2) that in any event the defendant had no right to set up the counterclaim, in that he had filed an answer to plaintiff's petition, setting up said claim, and thereafter made a general assignment for the benefit of creditors, and therefore had no interest in the claim, as his right thereto had passed to the assignee for the benefit of accepting creditors; and (3) that the court erred in refusing the plaintiff a foreclosure under his mortgage and also in refusing to grant him a judgment against the defendant and his bondsmen on the replevy bond.

We do not believe the trial court committed any error in overruling the plaintiff's special exception to defendant's allegations setting up the cross-action. The cross-action arose out of the following facts: Some time after the sale of the said machine and the taking of the note and mortgage, the agent of the utilities company came to the defendant, and stated to him that the motor in a like machine which had been sold to another party was defective or burned out, and he proposed to borrow the motor in the defendant's machine that he might install it in the other one in which the motor had ceased to work, and that he would, within a reasonable time, return the motor in as good condition as when borrowed, or a new one. It appears that the defendant and the plaintiff's agent agreed upon the matter, and the motor was, under the circumstances, lent to the plaintiff, who agreed to return it and to reconnect and install the motor when so returned. The defendant contends that the motor was never returned, and that the one that was delivered to defendant was a different character of motor and never installed and connected by the plaintiff as it had agreed to do, and that the motor itself was worthless.

The defendant alleged that by reason of the foregoing facts he had been damaged in the aggregate of $400. We will not discuss the facts underlying the defendant's counterclaim, but they have been examined, and we have reached the conclusion that there is such an association and connection between the plaintiff's claim and that asserted by the defendant as would justify the trial court in settling both controversies in the same action. As alleged, the plaintiff's disposition of the motor, after borrowing the same, amounted to a conversion to that extent of the property covered by the mortgage and for which the note was given. If the defendant must suffer the misfortune of having the Frigidaire machine sold under a foreclosure, he had the right to have it sold intact and not stripped of an essential part thereof, for the reason that, if sold intact, unquestionably a greater sum would be realized from the sale thereof and the defendant's debt the more materially diminished. The cause of action set out in the defendant's counterclaim evidently was incident to and connected with the plaintiff's cause of action; namely, the note and mortgage. The court committed no error in overruling the plaintiff's special exception. Streeper v. Thompson et al. (Tex. Civ. App.) 23 S. W. 326; Steiner v. Oliver (Tex. Civ. App.) 107 S. W. 359; Blocksom v. Guaranty State Bank & Trust Co. (Tex. Com. App.) 251 S. W. 1025; Id. (Tex. Civ. App.) 241 S. W. 319; Northwestern Port Huron Co. v. Iverson et al., 22 S. D. 314, 117 N. W. 372, 133 Am. St. Rep. 920; Hanson v. Skogman, 14 N. D. 445, 105 N. W. 90.

The second group of assignments, complaining that the defendant had no right to set up and prosecute the cross-action against the plaintiff after having made the general assignment for the benefit of his creditors, is likewise overruled. As to such cross-action the defendant became a plaintiff, and having duly filed his answer setting up said claim against the plaintiff, and thereafter assigned it, we believe that it was proper to continue the suit or counterclaim in the name of the...