Terry v. Witherspoon

TERRY v. WITHERSPOON (255 S.W.) appeal. tiffs, and defendants Reversed remanded. al.* et TERRY WITHERSPOON et v. (No. 2090.) al. Gilliland, Jno. P. Slaton and Carl both of Hereford, 'Hendricks, Amarillo, and H. Appeals G. (Court Amarillo. of Texas. of Civil 14, appellants. Rehearing 10, for Nov. Denied Oct. 1923. Rehearing Denied Roloson, Russell, E. 1923. Motion for T. Second W. Wm. 1923.) 5, Knight, Dec. appellees. all Hereford, M. for <&wkey;>lOwnershipof Trover conversion 1. — HALL, appeal J. C. on property This the second material of conversion at question of in this case. re- consent. The first ownership conversion, directing a suit for versed because erred in the court conversion time of the the material appel- a verdict. See 239 S. W. 300. The pos- question of consent on the petition. lees since then their have amended by the then owner. session As amended the shows that Yern Witherspoon, &wkey;>278Allegations nec- Beams, mortgages E. G. Geo 2. Chattel — essary be sustained action seeking must E. W. cause recover of proof. by Terry, Terry, Terry upon G. A.R. J. suit, in. plaintiffs, a foreclosure Where promissory May note, 1920, 1, a dated expenditures, were certain to recover order $6,695, the sum of six due months' after expenditures allege required necessary such date, cent., interest at and con- on reasonable, the burden stipulation attorney’s taining the usual for competent by allegation them to sustain fees. proof. n charged purpose for of se- Rehearing. On Motion curing defendants, said G. note the J. and and 1920, <&wkey;lMortgagees Terry, 1,May mortgages on executed 3. Chattel 02— possession under contract authorized mortgage held delivered to a- business. to conduct retail personal property on situated and used garage mortgagees aof Where 1,May Garage, Hereford and that on prop- possession purpose executed of trust deed erty debt, nor of sale neither for the note, conveying to secure west 400 possession under contract transferred to of a certain of land acres section in Gaines power mortgagees with vested charged county, Tex. It is further garage retail business. ns or about October the defendants ex-, <&wkey;47l(3l) toas 4. Evidence —Conclusions plaintiffs not be informed able authority while tent due, the note when on Novem- mortgaged property held inadmissible. parties 1, 1920, entered ber Where, mort- liens to foreclose in a suit agreement whereby Terry, a verbal to acting possession, author- gagees the extent agents for himself or as ity mortgagees issue, wfes Terry, J. G. defendants plaintiffs uhder- concluded as to what plaintiffs joint agreed that into as to with defendant from conversation stood their garage authority admissible. defend- R. A." G. J. ants <&wkey; mortgages insuf- 106—Evidence 5. Chattel trying would use efforts mortgagees ficient to show purchaser find a carry business. retail keep garage open go- and as a plaintiffs, who defendant’s Where apply ing concern, obtain- pos- creditors, agreement, entered into under from the sale of business or from sell ed order session defendant’s satisfy debt, payment evidence held the not authority to paid show reason- one, carry thority. being au- retail on the business compensation for their services in able in bulk. limited to business; entering ducting said agreement, verbal imme- mortgages <&wkey;249Mortgagee into said diately 6. Chattel must — choose, joint possession between sale under and fore- closure suit. with defendants R. and J. G. mortgagee A cannot resort to. a sale under Terry, and continued the busi- power in and at same in connection with until about ness foreclosing mortgage; a suit the rem- to edies defendants R. November A. being inconsistent. voluntarily G. abandoned part. dissenting J., Boyce, plaintiffs and left said sole thei'eof; plain- possession and control Court, Appeal District Deaf Smith diligent trying been active tiffs Tatum, Judge. County; Reese purchaser the business and find disposing Yern others Action parol agreement others, ment, at the time said with cross- *A. Judgment plain- J. G. defendants R. for- action defendants. Digests Key-Numbered all and Indexes topic see and KEY-NUMBER in cases same other ^craFor granted January *writ of error 255 SOUTHWESTERN REPORTER Terry Terry conducting a and auto- A. authorized said J. G. and R. were the Terry selling repair shop, dealing in and said mobile execute bill of sale and accessories; repairs, possession tires, tract and and to the of deliver the automobile agreement property parol plaintiffs; two of tbe that under and business to that aft- said employed plaintiffs serv- er and rendered the bill of said sale and contract were plaintiffs, ices for executed spiracy of tbe wbieb services as a of the con- result reasonably month for $150 between themselves H. worth B. and employed; defendants, possession to all of on October defraud each man so that of took property,' 1920, in of said verbal said furtherance and have converted the ment, alleged R. G. and A. same J. own the said defendants their use. is further Terry Terry sale of bill the au- executed and delivered defendant W. form, sons, defendants, a chattel in fact thorize Terry, G. which was A. and J. but R. mortgage, plaintiffs, the terms of to execute bill of to defendants said sale and con- tract, Terry, that, them, Upon and R. or either of said J. G. but which conveyed the representation plaintiffs plaintiffs, of mer- said stock fraudulent the of the repairs, consisting Terry chandise, parts, J. G. of defendants and A. garage, father, Terry, and at the believed that directed them then their accessories same had plaintiffs entered into to execute said instruments Terry, possession property G. and R. and deliver of with the said J.' plaintiffs; that, representations provided of sale was bill if that said discharge said made, of said indebted- not been them be and received had not believed true, they plaintiffs, would not and exe- ness due would not have by plaintiffs contract,. held said bill of other securities cuted affect defendants, possession but would'not have delivered indebtedness 'of the for the property Witherspoon co-plaintiffs. plaintiffs take and his sale, They allege representa- and use property named in the fraudulent property willfully made; maliciously tions were their efforts property, plaintiffs turning and other that the cash took of and same into converted note; paying maturity in after and car- used before looking fraudulently necessary expenses conspired' B. that H. Webb had plaintiffs possession rying excess in order to on the by plain- applied held note and assisted and acted should be pur- charged possession taking same; in the date of the conversion them upon property further It was tiffs. pose parties was that said thereof the intent $13,000; create a as a was of the value of sale and bill lien H, operate W. owner pur- thereon, mortgage converted; and for it was if he not. thereof, placing pose the owner J. R. A. G. payment assigned secure the further cause of action the of said herein, reason of the conversion to note. him. pleading damages They to account in said offer asked reeonvention for the Plaintiffs money $10,000 received ex- for all value ex- to defendants managing damages. emplary pended it, al- H. B. Webb business while answered defendants’ $24,426.- aggregated receipts general gen- leging demurrer and cross-action aggregated expenditures By supplemental petition- denial. eral judgment prayer answer,, $24,230.77. generally demur interest, principal, deny up in amount of the set the cross-action.- facts attorney’s fees, jury, reply foreclosure was tried to a The case personal prop- jury special real issue found as follows: estate" to (1) liens Bros, furniture, erty Since the That owned therein. described merchandise, defendants, H., consisting fixtures, accessories, repair parts, W. -of reversed stock , machinery, tools, Terry, their first G. have filed amend- and ed execution and on, burning-in original answer, acetylene generator, Eord admit the day October, 1920, delivery up- stand, on the 20th note sued Garage; (2) well as the chattel as the Hereford known deed day did, before 18th execution on or of trust. of the bill of sale 20, 1920, 1920, agree contract, dated October is also October, them, jointly deny Kinney, ry admitted, either of Ter- said instru- purposes might charg- Bros., the fur- were executed for the ments merchandise, allege fixtures, generator, niture, ed the de- burning-in located the Hereford. and R. A. stand G. fendants J. to execute induced Garage manage- bill of conduct or assist and enter Terry,, (3) rep- business; false said contract and fraudulent ment on or agree them, resentations before personal property father, the effect that given pur- garage, tools, goods, etc., should be to the who owned the port dering controversy. ness. this tain the for such sums. This contention quiescence tiffs set reasonable to essary Is that there is no evidence whatever to jury’s findings. mortgage property because the time third, decreed that dated dence. sustained. stance such issue consent of the then owner to plaintiffs. troverted sonable name is ceeds ment rendered pose the right H. Upon flicting, submitting ownership owner ership sent sion. son .T. conversion because thorized over the amount of (Tex. sary expenses (4) “Our courts have held in a In the [2] In their [1] It is contended that the court erred allege O. them was business, of allegation. alleged it and therefore this issue the of W. H. Civ. derived and fourth issues become execute the securing Boyce, expenditure Based if conversion, up of its conversion allegation by competent proof. and is H.W. judgment involved, the cause telephone described owned light E. and the expenditures the App.) entered into his sons owned the is material If compensation the If reasonable as conversion. assignment cross-action. and R. plaintiffs’ & plea the these necessary first Justice, the upon of this owner proper, necessary, 230 W. 862: them and Terry, in the 37 S. W. 971. The $150 sufficient to allowing defendants take against testimony deed of issue, inquiring does not with which therein. T. S. expenditures contention of reconvention or foreclosing the action. each in Nunn v. as Ry. issue note and instruments at the time of the the the H. Webb finding he is the recover court for them E. W. introduced In so the consent verdict the bearing depends upon J. G. and upon applying money expended B. them a Co. acted trust variety must also sus was no conver took show is foreign It TERE,Y v. WITHERSPOON at But the own erred in ren for sustain necessary by sharply v. Garrison immaterial, immaterial, month was the far as the bill of sale the in his" own Terry, is further Wheeler upon appellant business; upon Brillhart must and rea to make as to the recovery required that W. in all the of cases services nothing S. in sub- present date second, by chattel uncon to the or ac- neces- plain R. court time. busi pay- sup nec con pro- (255 S.W.) rea- full evi- the State Bank au- As A. of purchased the view appellee’s cussion again for such the stock Furthermore, Hereford erspoon that there is call attention to the appellants necessary, the limited selling not be deny tent According is thority shown. This agent appellant’s It tain Garage lations. cause the on the the charges reversed, “Agency,” where a penditures agent, paid no reason curring suits (Tex. cases should not ditures, before he can recover the amount must show that there was We held .in Because the While the rule accept insisted is Cyc. wrong agent agency buying carry items which this was reasonableness asserted 100 S. W. insisted for reviewed the statement or a trustee Civ. of his trustee, 876; applied verdict, in bulk for cash pp. & On Motion them, party Seago White, why agency Garage, as a credit authority. has been recreant damages on appellees §§ it on as a retail' as new earnest the sole App.) reasonable. new stock. Tyler made under a contract 78-80 39 ever T. (Tex. & N. O. expense and another, ascertaining 224, 225, 458; always expenditures, made no declaration whatever is the which dealings the expenses hand, and exercised motion done, court entered a in the motion to this case. appellees guardian, judgment unsustained seeks reimbursement v. goods apply in this instance.” 1015; vested principles ; they 244 W. rule S. Civ. cause as as original opinion that, contention insistence .is has it is general rule, the first trial fact appellants known for duty incurring indebtedness, E. upon In appellees were well. ordinarily applied Cyc. pp. 329, S. App.) cannot presumption ^[*] Ry., .The Smallwood Rehearing. appellees acted remanded. Ry. party making expen- the name With- and other must be reversed. rehearing equally applicable the extent of the 45 necessity of the or announcedin the indebtedness. 35 as by charged against In deference to necessity prove 211 W. reasonable * Tex. during Co. v. by the latter. 1093; connection exchanging judgment Cyc. name, the Hereford any proof that no au- appellees, And we see judgment the amounts special contrary S. but good appellants, facts with to the ex- appellants applied rehearing Civ. that cer- trust. It p. we have v. First such re 331. 2 Spencer original the dis- 356, 43 for ex willing it can- for in- based, or as admit 1577; C. faith these App. 474; only paid, one, up- be- an or of is (Tes. REPORTER SOUTHWESTERN and which the powers. ecuted October be tract, the bill tion. The has since October deed duct the and worth was then known as the Hereford, so two dling, repairs, have continued agreement and an automobile fendants November ness and and control J. G. trying ment; services ing ness, reasonable assisting would use joint possession of said IS, tion, upon time, for the might ness then Terry, management conduct ther R. A. ment formed the ment of conversation is as to tlie agreed session with G. 16th chaser able meet scribed at either for ^[3] “Plaintiffs “Plaintiffs disposing a chattel employed and J. fixtures conferred of of been agreed that the We day October, of. or the sum dealing both of which instruments were ex keep the time.” that at the for said amended purpose of said and Beams had the note the same from trust in' find a We R. A. think it left the obtained its Deaf himself bill G. being conducted their efforts verbally alleged above mentioned allegation compensation for sale, of said should thereof; aver plaintiffs that plaintiff further J. parol agreement, mortgage, maturity all voluntarily 1920, tbe said business were cannot in, and conducting purchaser defendant W. 20th, connection 20th, same Smith sorts of $150 business, above cliseharge first amended or and plaintiffs in sole yerbal in connection entered into repair shop, from same, as assist applying be active time of follows: conferred. aver that on plaintiffs should should as the clear that the land nor the open and a assent vested them with such unless selling dated October case R. A. per terms county, in described. G. property after appellees alleged November no Hereford abandoned alleged for trying conducting a accessories in said while month therewith, and that covered the tools so reference agent the defendants the defendants go authority have been making sale of the written same said automobile such such J. G. said employed Tex.; business. a verbal into note into immediate tried Witherspoon, to which original peti- going concern alleged for Neither was intend- conduct óf J. continued It 1st, services find Garage, in of October reasonably diligent in authority. were han- authority and R. joint said busi- the busi- above each man proposi plaintiffs the last to that where- garage it was andG. paid a doing enter- acting about tires, parol what that Under first con pay- pos- pur- fur- and de- de- (cid:127)ties amount for his pellees, ings the dealing November, 1920, March, 1921, paid monthly cises month to the erty certainly firm have been ferring to oral services statement concern, of the business and conduct Tex.;.Now, will take and tions, mortgage covering tools, for cites in what lows: tures. The contract same are to be ceeds cash or into selling ford, Tex., and located states were not mentioned be second issory pellees the bill of charge ing debtedness, ond second aiding parties said sale I. siderations, said ed If these “Whereas, .applied G. and the services mortgagor, party Renfro are which, according dollar and other was entitléd to be temporarily construed- outfit affect the other bill of bill with a in the ais mortgagees is now note; First, during sale to parties, parties.” said salary necessary in have this willing part: as mortgage, salaries said charge only damages who attends inconsistent writings authority to reduce the said indebtedness to the Renfro part but conditions, simply building therefore, doing stock of sale and will use discharge property other and is first warranty indebtedness, facts shows the whole debt due one of about no it which is evidenced certain alone, or exceeds his paid including the same it amounts of the of the is not includes burning-in stand, which it Terry, conveying is whereas, and for of from Beams parties accept necessary expenses day property authority since October member of the chattel either member of the sec- once are construed recites agreed without simply securities merchandise executed the or dominion over the to the of said indebtedness good it is if the given personal property are to property Building, with the same to be compensated Third street on said proceeded $125 same; as cash and the the business. The mortgagor may it is are indebted period. building an equipment mortgages, giving turhing that second hereby agreed nor is it -to in $125 which second and valuable title appellee’s allega- a formal specific purpose. to a mortgagee second consideration to take original acetylene transaction, tendering received him. a month from alleged by ap- their efforts reasonable clear that been expenses named in .the executed of the used as fol- aas without conversion purpose of to 20th, The writ- located rights same same into appellees’ Hereford, $200 Payne parties drawing all in Here- and fix- do, said parties of the prom- retail prop- above exer- weld- shall day, pro- par- now first any and and sue dis- any pay re- ap- re^ TERRY v. WITHERSPOON (2B5 S.W.) regard you just said, App. Lindsley, 126 S. W. to that cannot tell * * * how it was worded. “Q. you He' talk didn’t like he wanted all whether determined remains No; say anything it? A. didn’t he days prior 16th, four conversation on October spoke about all of us. He of us. writings, conferred' to the execution “Q. you Didn’t state the former trial authority upon appellees to take you he in, never to come but was talk- they had the business and ing Kinney? singled A. He out the never me doing. * * * is- been Yern and asked me to come in. On morning sue testified: of October Kin- H. B. ney, and I had a conversation after Roloson requested Terry having ahd “W. sale, had drawn the contract and bill of myself quest Kinney garage, re- and on this come to Terry boys signed them, before in which garage, and and went fixing up papers we discussed so got when room better secure our note create lien on the kept parts alone. When where property. purpose boys getting Our these Terry said, ‘Boys, I am not we went in W. H. sign contract and bill sale was pay your note,’ and I do to be able to better he is due’ wheth- know said ‘when it whether secure the but we them that tell said, ‘I He er he ‘the 1st November.’ * * * purpose. posses- our I took guess thought sold, and I sion under the contract down,’ he trade has fallen sale, holding possession of under the contract and bill and have been money, failed to but had tried *to borrow the sale since of Kinney said: and do it. And to he turned signed contract and 20th bill of sale were on the why you up Kinney, and here come can’t ‘Mr. day time, present October, 1920, of to down only help try dispose That us I am of and it? day May, 1922¡ jve which claiming contract and bill of sale. At 30th and are the time the is the of you.’ way pay going And be able to to a lien up about it came in conversation then' stock tion had at company being conversa- This formed. of was also bill sale was executed the contract garage hour or more. lasted an * * * part Kinney it,. and executed as Kinney in time the second Then he to turned I went under the contract bill of sale in and regard said, coming and in, am discussed and to day they signed, I were and the first time anything willing to boys, I do ‘Now to Terry boys that claimed learned H. and the you boys satisfy business I can this until right we had no under the pay to way only sold, can I as that will be days garage bill sale and contract was about you’ sell said he have to and signed, * * * after they was and I that heard pay conver- that In in us. order to pos- claimed you I still continued say: this to hold Terry ‘Kinney, do did sation H.W. present why here; session and it down time. trading can’t run quite around a bit of * * * dispose help you up it After we heard claim- us and come here * * * garage] right [meaning that ?’ The substance ed we had no to take un- Terry that W. conversation was der the bill tinued to time, running conducting of sale and this contract still con- we garage Kinney help present sell the out him to wanted hold down to the * * * repair shop I in bulk. hadn’t Before October in back and any Terry agreed W. H. or a retail mercantile sell- business garage go to either take ing parts, repairs, else to of it or and to automo- accessories help it, that I don’t believe run and machinery to front, biles and other were about a in the and we any personally singled at time out he ever and asked me tion with mo doing this when this case was first tried * * * go In the conversa- in there. year ago. During the entire Terry testified about I have goods running buying time we have been anybody giving nothing us was running there a retail mercantile the re- moneys a bill I had no sale to the and at time pair shop, taking repair shop in on the it, thought getting a bill sale to goods. sale and on the Part of the time we * * * have heen in name “Q. you part Garage, tell in that conversation Did he in the Hereford of the time Kinney, willing you, Kinney Witherspoon. he for either was & have Geo. the name We go commingled Beams, goods E. in and take or G. Webb to there on hand when Well, remember, bought as I of the outfit? we those have in the went in with we regard Garage in there all he said to that while name of have Hereford and those we Kinney bought a discussion over two was made in in & the name Wither- During spoon, impossible goods the conversation the different times. it is tell Kinney time he could first was when asked he we went on hand when in from those we dispose up help it, bought Garage not there him come in of the Hereford the name up bought Kinney in the it and later on again, conversation came name & those With- we getting up moneys erspoon apart, talked atout stock and we taken we have up company; again, part in, it tell came but I cannot cannot tell was taken from we what just Terry shop you repair said. All was W. H. what was what taken * * * company prob- was, stock ‘You could about the ably of merchandise. from way up company Terry a stock work sell I learned that wanted to see way.’ garage, Kinney sell out in that out and sort me at the three four stock or you willing “Q. you, days He tell he was didn’t the bill of sale and contract before any you Kinney. Kinney Beams, Webb, any signed or one of or Mr. me or told you to come in member of and take wanted see at us just up garage, did he? I cannot there and had the con- at and we conversation; my something there I cross-examina- testified about on recall versation 255 SOUTHWESTERN REPORTER go me do hour. This lasted about one there and tion. When we sell the outfit conversation * * * says, got just day October, bulk. 1920, garage sign On there W. H. 19th pay Witherspoon, ‘Boys, going our are not able to we I went to the due,’ boys, and said that he would and saw the note be it is asked them to pay authorizing go us able to the note he sold thought help- something. said, goods; him He ‘I sell out the stock ness or did I the he had tried to borrow do turned to' and is, thing stock, garage bulk, an,d Shirley, lock, think to sell the to Karl had the sold * * * proposition that barrel. In He also said trade fallen down.’ substance has money, but, that W. Witherspdon could made in the conversation I was when he that time I believe had with him' he and at before coming was, went going and asked him about to Clarendon he to us about talked garage. helping helping there, He said sell sell busi him * * * n Kinney, here; quit trying good ness. trader around We sell busi ‘You are help case, why pose you dis- us ness in bulk the last can’t come hene trial of the way only year ago, try going be the it? have not been That is * ** ing pay you.’ I would sell it since be able to time. we We claiming say' ‘Come commenced lien on the not in whether it,’ help or in it under bill until we sell us this ' day they said, sell it.’ tract here and executed. he don’t whether ‘Come the. my enough holding to state. know we been isn’t mind whether have it as lien That clear willing not;- say, T secure our or am debt we been hold In to do conversation * * ing according satisfy you boys.’ anything terms sale, matters didn’t and our intentions have been this conversation we discuss garage. provi disposing except to hold accordance with the note all Nothing sions of 1920, said about contract dated October just holding anything. us, He have been or told it in lien .and boys you purposes remark, ‘Why come for those can’t from the the contract made the (cid:127) ** present help straighten ?up was this business written down to the us time. here Guy shop me- understood from back and work the conversation that tes can you there, having tified chanic and back before he went draw boys give up Roy, will Clarendon that he us run the busi here with wanted can work buy Roy get in a collect his ness retail find a time to until we could more Terry'in help the er he knew because his note would due bills.’ We were to Kinney * * days, something 10 raise and he didn’t have was said to front. And time buyer. money, trying get give getting to a him more out and to nothing Kinney money, Ter- I and had with raise about but there was the conversation Clarendon, ry I have an extension note in the to conver before he went it; helping sation, agree about, matter of extend to testified in which Terry time, discussed, a. had ask neither did he going us for more our was

to sell selling give didn’t him it as whole.” there more time.” reference to [4, they Terrys Kinney upon flatly Appellee 5] issue this E. W. denied that or either them ever authorized follows: had testified as appellees to take Witherspoon ga and I into the “After Witherspoon retail it as a concern. 20, nothing rage with prior do October I had to on they Kinney’s statements as to what collecting accounts the had my put from concluded tion the conversa time from or understood to that 1921, collecting concerning accounts then until March the extent with'W. purchaser made, trying a we business. More of to sell to find admissible, authority not was my trying efforts were giving understanding from what was many very property. I to seem find jury, they province invaded the interested; Shirley I Karl think disregarded all such statements must be prospect nearest we had. determining evidence. effect of just I to before he went told S. W. v. Gilmer 66 (on 16th) Shaw conference at Clarendon 679; Wegner, Shirley, Biering Tex. 13 S. a trade v. 76 that he Karl with spent McAnulty, I 537; fallen lots his trade had down. v. Tex. Buzard trying property. him him to sell time with I incompetent Stripped of S. W. 138 this . a to it to name oí tried man sell nothing testimony, that there is we conclude my Flanagan, etc., and I others. understood Witherspoon or of either in the evidence sell the as whole duties to outfit" Kinney au shows that help I it sold I run it. understood this indefinitely thority carry on to the business a conversation I had from period Terry just of time as retail busi or for before he went to conference say pos took The substance of conversa them at Clarendon. ness. Both of was, going ‘Boys, amI to able to it, tion not session, the business conducted held note, sell meet this and we either will have contract. Their bill of under the thing you boys help come in and testimony had been shows buyer. run it until find a I have tried to-find Shirley. Failing trying it to Karl sell * * * buyer my under can’t.’ It this, Kin he wanted it clear standing from Ter this conversation that who, seems, trader, it ney, to sell it ry lock, wholesale, me to wanted sell bulk, this could done then if and barrel. from this" understood stock company organize a stock conversation what he wanted have erspoon agreed ness and their it was n sion ter time of Terrys. vember whole.” his iness after mony, debt. them goods you find a the the in the record be ized pose substance am not sale of the collecting and we tradicts is based shows to be ance with the thority and can’t.’ cash cept organized to above show in described The ^[6] sell any placed possession, detailing withdrawal securing 10 “suppositions” come not could “Terry to enable of the no of the in lieu of or for the above object Since expected believed, several most favorable where buyer. boys days purpose of other come conferred will 1st, payment agreement for the by the written states appears drawn and His efforts to run the hand, exclusively upon come upon in unpaid for that be made ” them merchandise business, lock, reason of have property for the front of is and that March intervening could devote them into the prospective it, and he he business as different says This true it was that I have tried remainder of quoted statement. having in and and written the evidence cash as a instruments maturity of the note on No- reference says been help beyond instruments, property as conversation bills dispose buying he to stock purpose take one of on October 16th. statement, would 1, 1921, which were contract, signed prior able to conduct of the conduct anything construction which can he contemplated he doing, during building made an effort sell it the the bill parties; instruments referred frankly between the 20th November intended building, buyer. understood he boys it in payment stock, them authorize credit to sell the the sell this “understandings” extension to Karl their there is to find and, by meet purpose of bet- are as whole they is inconsistent and Kinney’s it in company TERRY v. entire time the execution and was, ‘Boys, I supposed bulls. take hand the admits of sale exposed said: mortgagees, Aside from upon is at true, while would testimony general two it until 1st; help dis- writings, bulk for thing or business the bus- due them Shirley, nothing author- posses- W. H. to during barrel, of the the and the one With- buyer goods testi- their the “The their vari- boys that court. Their they they sary was the and execution of the written this Green, (255 S.W.) sell have remedies. As said are for consistent au- action. ac- WITHERSPOON be of general ferred, presents maintain their them a written have sell the preme 492, tions true, and foreclosure gone verbal and written Raynor to maintain while still verbal replevied by to them the sell this ton, and, force mortgages by suits. These remedies were in- Openshaw Cameron Co. had three remedies: Texas sell the contained consistent with each could be resorted to Cameron Co. plaintiff’s proceed of his debt at enforced under ruled, two announced S. W. “The We BOYCE, The So both remedies of sale Raynor, the verbal general it and mortgages, 793; payment 49 S. W. 1047: is inconsistent remedies acted we lien into meaning by accepted suggest motion for Court in Cameron Loan true power. 88 Tex. cattle at allegations under the verbal lien, demurrer this demurrer authority is the motion for & strongly if a valid sale had been & through this action cause of Moore v. v. satisfy question not question holding trial demurrer since the deed petition Terrys case it Dean, cannot Agency (Tex. this and further of their that, upon amended (dissenting in thereafter their the amended in of the contract brought under sequestered seriously doubt, Hinton; A creditor public abandonedthe the and. incline to the their should rehearing action to suits suit majority conferred 59 action, other, and no rehearing should be over- arises whether at the mortgagee appears from the agree 30 S. W. the that the Gammel, same time. should be sustained authority. Tex. outcry instrumentality apply for a their suits to foreclose from Hinton to the note in debt, election between for foreclosure.” trust; the authority another (3) be instruments alleges authority same plea Civ. this appellant’s Civ. cannot resort is overruled. as to Hinton, recover sustained to the under the property under part). conferred foreclosure same rights 864; Avery agency cannot resort that that the (2) App. 498, under which foreclose particular, opinion showed that time. When App.), made, two of alleges trial, verbal conclusions This their the under from Hin- they may collection to sell to power Ward v. time. them way. must be by I so created (1) allega- giving to en- neces- sell if the being cross- 62 S. agree right upon have con- case 120; suit Su- 125 the To -If It v. a (Tex. REPORTER SOUTHWESTERN 255 478 garage cern” rather than a of the The “closed business.” bring practical right record and as discloses that this was the put par- foreclosure construction contract Rep. Am. St. estoppel. Pac. Cal. law Lewis v. Powell evidence, plaintiff’s According Terrys’ 127. understand templated 205 S. W. 737. proposition repudiation discussed just of the contract before suit them, plaintiffs, filed reassertion thereof in owners, practically put in” with the “come this suit work Bros.; one of that repair shop sell (who “stay in the other buy in the front” business. conditions?) would drove in under such assist They into court. me, evidence, it seems position, circumstances, under the finding intend that it estoppel seeking would warrant voke “going con- aof sale should be aid of -the court. ed ma.de notes suit on their through Terrys “stay court. ties of the themselves. One of the did lien their It the evidence the would be one pleading days my opinion in” for some under 20 is .that meaning charge,” during the contract “took which time jury, kept going way. ness the claim fact for usual When finding Terrys sustain out not under of was record would the parties provide such contract contract mean that intended keep kept business plaintiff going business should that “going” sold, pending The was under which but under sale. claim that the clear; provision plaintiff Wither- not went into tract is spoon procured “will take was the records in fraud. associates As I understand Terrys appeals, efforts use their these two the it,” neces “the of the have never contended until that claim was paid, put argument expenses are sary of the same forward motion on this rehearing services including reasonable the contract meant that (plaintiffs) up pending second the business member of was to be closed same,” inconsistent not is sale. attend who pending the bus say the sale I do not mean to idea with the iness con- con- running. my mind the kept To tract as is to be construe it could suggests was what writing indefinitely. itself duct law The writ perhaps where a parties imply In cases intended. would made possible, too, be be a sale should parol ambiguous terms in its may ten contract within reasonable time. may in negotiations prior might filing evidence as of the suit ascertaining the purposes plaintiff’s right affect the business. are troduced for to thereafter continue Lemp Ar writing v. questions itself. meaning mengol, Since, of the such as these Q. 941; &A. S. W. briefed, 26 Tex. not and opinion, discussed App.) S. (Tex. Cooper majority Civ. Ry. express opin- v. Co. P. W. xxi. In some together no myself; S. refused of error writ ion thereon al question the contract whether, where cases under the facts of this terms of case, some of the as to silent there was ever a time when the doc- ad parol thereof the, agreement, appli- trine election of remedies had taking possession Enfield prop- v. cation. Wilson The missible. (1, 2), erty right pursuance authorities. any optional was not in W. 532 249 S. parol up leading negotiations conferred evidence as act contract.' Such warrants, contemporaneous execution execution finding was the opinion, my contract, expressly agreed the thereby keep parties intention to “take bulk. was sold until it use their event, efforts to sell it.” In purchases in my opinion, subsequent of stock particular replacement identity articles acts of the destroy the prevent application would thereof of the doc- McGrath, Byrne property. applied trine here. Election is branch

Case Details

Case Name: Terry v. Witherspoon

Court Name: Court of Appeals of Texas

Date Published: Oct 10, 1923

Citation: 255 S.W. 471

Docket Number: No. 2090.

Court Abbreviation: Tex. App.