73 Tex. 533 | Tex. | 1889
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 were 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 were 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
The instrument was signed by Horton & Hays, duly acknowledged, and was registered as a chattel mortgage. It was evidently contemplated by this cbntract that the goods should be exposed to sale by retail in the ordinary manner, and the testimony shows that this was done from the time of its execution until the date of the levy. Hence if the instrument under consideration is to be construed as a mortgage it is void under our statutes. Bank v. Lovenberg, 63 Texas, 506; Duncan v. Taylor, Id., 645; 1 Sayles’ Ann. Stats., art. 65r.
The contract shows upon its face that it is to secure an existing indebtedness of five hundred dollars; that it was to secure a further advancement of stock, and that Horton & Hays were to sell the goods and pay Wilber the proceeds less the profits. In other words, they were to
But it is complained that the court did not submit the proper issues .and that the jury did not render the proper verdict. The value of the property as shown by the sheriff’s return was $1625.65, and the amount claimed in the execution was only $124.06, besides interest and costs, and the court charged the jury that if they found the issue in favor of Kray & Co. to find for them the amount of their debt, interest, and costs.
The jury were also instructed in another place in the event they found that the goods were subject to plaintiff’s levy to say so by their verdict. The verdict is as follows: “We the jury find for the plaintiffs the amounts $124.06 principal, $20.66 interest, costs $5.60; goods levied on amounts $1625.62.” The statute prescribes no form of verdict, and we do not see that a verdict generally “for the plaintiffs” or “for the defendant” would not be decisive of the issues in favor of the party for whom a verdict was so found. The court having given two forms for the verdict to be returned in case the finding was for Kray & Co., and the jury having adopted one of them, the verdict shows beyond any controversy that the jury determined the issues in their favor. It was not necessary for the jury to find the amount for which the claimant and the sureties on his bond were bound, because this was fixed by law. But such finding can do no possible harm, and so much of the verdict may be treated as surplusage, and a good and sufficient verdict left standing. The claimant and his sureties were liable to have a judgment rendered against them for the value of the property—an amount largely in excess nf that found by the jury. The court should have rendered a judgment upon the verdict against them for the value of the property with legal interest thereon from the date of the bond (Rev. Stats., art. 4843) and
The uncontroverted evidence in the case showing that plaintiff in error had no valid claim to the property, the defendants in error were clearly entitled to a judgment for a larger sum than they have recovered. Under such circumstances the judgment will not be reversed for errors in the proceedings. Bowles v. Brice, 66 Texas, 724, and cases there cited. It is therefore unnecessary to consider alleged errors of the court in the admission of evidence and in the charge to the jury.
The judgment is accordingly affirmed.
Affirmed.
Delivered April 19, 1889.