Wilber v. Kray

• Decision Date: 19 April 1889
• Citation: 11 S.W. 540
• Parties: WILBER <I>v.</I> KRAY <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 540

WILBERv.

KRAY et al.

Supreme Court of Texas.

April 19, 1889.

Error from district court, Johnson county.

Geo. D. Green, for plaintiff in error. Poindexter & Padelford, for defendants in error.

GAINES, J.

The appellees, being judgment creditors of one H. Horton, caused an execution to be levied upon a certain stock of jewelry, watches, etc., as the property of the defendant in execution. The plaintiff in error delivered to the sheriff a claimant's oath and bond under the statute, which was returned to the district court of Johnson county, where a trial of the right of property was had, which resulted in the judgment from which this writ of error was prosecuted. In the issues made up under the direction of the court, the plaintiff in error claimed that the goods were his property, and now in possession of Horton & Hays, as his "agents or consignees." The sheriff testified that when he made the levy he found the goods in possession of Horton, who had them in store, exposing them to sale in the usual course of retail trade. In order to show title in himself, the claimant introduced in evidence an instrument in writing, of the body of which the following is a copy: "Whereas, H. Horton and A. P. Hays, under the firm name of Horton & Hays, are doing business in the state of Texas, with one store in the town of Decatur, and one store in the town of Cleburne, said business being that of jewelry, and said firm is justly indebted to one J. C. Wilber for the purchase price of the stock now on hand in said stores, said Wilber residing in the city, county, and state of New York, said indebtedness being the sum of five hundred dollars; and whereas, said stock of goods is wholly insufficient in quantity and quality to meet the present and growing demands of trade at the places aforesaid, and neither of the said firms have the means or credit to meet said demand, in the way of replenishing said stocks: now, therefore, these presents are to show that for the purpose of securing to the said Wilber that which we now owe him, and the further advancement of stock to us by him, we make and deliver to him the following, viz.: that is to say, we, the said firm, bargain and sell unto the said J. C. Wilber the following described personal property: All that stock of goods mentioned in Exhibits A and B, which are hereto attached, and made a part of this instrument; also all the stock which said firm may hereafter purchase from said Wilber, — said stock being situated in the towns aforesaid in Texas. That is to say, the said firm may sell said goods so purchased, and to be purchased, in their own name, rendering to said Wilber, at any time, upon demand, a true and perfect account of such sale or sales, and, after deducting the profits arising from said sales, to render and pay the balance to the said J. C. Wilber: provided, always, that the title in said goods shall rest in said Wilber until the said firm shall have paid all the purchase money. Under these conditions, the said firm shall be permitted to remain in quiet and peaceable possession of said goods until they make default in any of the terms of this mortgage, or, in the event that said stock should be threatened by any process of law from any third party, then the said Wilber shall be at liberty to take possession of all said stocks, and dispose of the same according to his discretion, and pay himself from the proceeds of said sale. This agreement shall continue and be binding for one whole year from the 14th day of March, A. D. 1884." The instrument was...