Wilson v. Carroll

• Decision Date: 04 February 1899
• Citation: 50 S.W. 222
• Parties: WILSON v. CARROLL et al.
• Court: Texas Court of Appeals

50 S.W. 222

WILSON v. CARROLL et al.

Court of Civil Appeals of Texas.

February 4, 1899.

Appeal from Kaufman county court; John Vesey, Judge.

Action by Hall Wilson against A. H. Carroll and others. From a judgment, plaintiff appeals. Reversed.

Lee R. Stroud and Adams & Adams, for appellant. Gossett & Young, for appellees.

FINLEY, C. J.

This suit is by Hall Wilson, as plaintiff, against A. H. Carroll, R. C. Boggess, and W. E. Moorehouse, for $577, alleged value of 72 head of cattle, claimed to be the property of plaintiff and charged to have been converted by the defendants. The case was tried by the court without a jury, and resulted in a judgment for plaintiff against A. H. Carroll, who made no contest, but as to the other defendants it was adjudged that plaintiff take nothing.

There appears to be practically no controversy as to the evidence, and it shows these facts: On the 13th day of March, 1897, Hall Wilson and A. H. Carroll entered into a contract of sale of 72 head of cattle, at Augusta Tex. The value of the cattle was agreed upon, and amounted in the aggregate to the sum of $577. It was agreed that $175 of this sum should be paid at once; that the cattle were to be driven to Palestine, and there the balance of the purchase price, $402, was to be paid, and the cattle were then to be turned over to Carroll. The $175 was to be lost as a forfeit, or to go as pay for trouble, if the balance of $402 was not paid at Palestine. Carroll paid the $175 at Augusta, and prepared this paper, which he had Wilson sign, dated at Augusta, March 13, 1897: "This is to certify that I have sold to A. H. Carroll seventy-two head of cattle for and in consideration of the sum of ($577) five hundred and seventy-seven dollars, one hundred and seventy-five dollars of which has been paid, the receipt of which is hereby acknowledged. Four hundred and two dollars is to be paid by said Carroll on arriving in Palestine, Texas, on or about March 16th. I hold title to above cattle until said sum of $402 is paid." This instrument was signed by Wilson alone, and it was agreed that it was not to be delivered to Carroll until he should pay the $402 balance of the purchase price at Palestine; then the cattle and the paper were to be delivered to him. Carroll's road brand was placed upon the cattle, and Wilson put them in charge of an employé of his, one Butts, to be driven to Palestine. The instrument above quoted was put into the hands of Butts, and he was directed by Wilson to turn it and the cattle over to Carroll at Palestine, when the latter should pay him $402, which he was to pay at that point for the cattle, but not to make the delivery without such payment. Butts and Carroll, with some other assistance, drove the cattle to Palestine. They were driven along in connection with some 600 or 700 head, which one Boyd was driving to Palestine under similar conditions. They were all driven from Wilson's pasture. Carroll had separate contracts with Boggess and Moorehouse to sell them a large number of cattle; the number, quality, and prices being fixed by the contracts, and advance payments were made to Carroll, to be utilized in the purchase of the cattle. The cattle were to be inspected and numbered by said Boggess and Moorehouse at or near Palestine, but were to be delivered in Lawndale, Kaufman county, where Carroll was to receive the balance of the price agreed on. The cattle of Wilson were designed by Carroll to be delivered to Boggess and Moorehouse under said contracts. Boggess and Moorehouse met Carroll near Palestine with the cattle and looked at them. They inquired of him how much money he needed to pay out the cattle before taking them on to Lawndale. He told them $1,900. They paid him this amount. This did not furnish him money enough to pay for all the cattle. He persuaded Butts to go with him to Lawndale, to drive the Wilson cattle on to that point, and promised that he would then pay the $402 to him, and agreed to pay Butts $2 per day for his time and work. Butts agreed to this, and, retaining the contract of sale, drove the cattle on to Lawndale. Here they were all put into a pasture designated by Boggess and Moorehouse. They were afterwards driven into a pen, and Boggess and Moorehouse cut out such as they did not desire to take, and took charge of the others under their contracts of purchase with Carroll. They got 65 head of the Wilson cattle. Butts said nothing to them until they attempted to assume control and assert ownership over the Wilson cattle. He then informed them of the situation, and protested against them interfering with the cattle. They claimed to have paid for the cattle at Palestine, and told him his protest came too late. Carroll also told them that these cattle were not paid for and were in the possession of Butts. In taking charge of these cattle, and depriving Butts of their possession, Boggess and Moorehouse acted together.

One of the defenses set up is that, after full knowledge of all the facts, Wilson brought suit against Carroll for the balance due on the contract price, and sought foreclosure of a mortgage...