Summary
In Burgher v. Barry, 211 S.W. 457, Childress, the owner of a storehouse, rented it to Davis for one year from May 12, 1914.
Summary of this case from American Type Founders Co. v. NicholsOpinion
No. 2108.
April 10, 1919. Rehearing Denied April 17, 1919.
Error from District Court, Kaufman County; Joel A. Bond, Judge.
Action by B. M. Burgher Co. and others against O. E. Barry and others. From part of the judgment in favor of one of the defendants on a cross-action, the plaintiffs bring error. Reversed and rendered.
The plaintiffs in error sued Joseph Shahada and C. C. Fox on certain notes and to foreclose a chattel mortgage on a soda fountain and appliances. The defendant in error Childress, made a party to the suit, by crossaction sought to have the landlord's lien foreclosed on the same property to pay $180 rent alleged to be due and unpaid. The case was tried before the court without a jury. The appeal is only from that part of the judgment in favor of defendant in error Childress for $180, which is based on the crossaction.
The court made findings of fact which are sustained, we conclude, by the evidence. It was proven that the defendant in error Childress, owner of a storehouse, rented it for one year from May 12, 1914, to F. L. Davis; but later, by agreement of the parties, C. C. Fox was substituted as the sole lessee. On July 16, 1914, C. C. Fox purchased from Grossman Company a soda fountain and appliances, and he executed a chattel mortgage on said property to secure payment of the purchase price of the same. On October 16, 1914, C. C. Fox, being unable to pay for the property, redelivered it to the Grossman Company, who then on that date made a sale of the same to Joseph Shahada. On the same day he bought this property Joseph Shahada executed a chattel mortgage on the soda fountain and appliances to the Grossman Company to secure the payment of the purchase money. The soda fountain was left in the storehouse of defendant in error by Joseph Shahada after his purchase from Fox. On December 3, 1914, the Grossman Company paid to defendant in error Childress the full amount of rent due by C. C. Fox to date, and from that date Fox ceased to be a tenant of defendant in error Childress. Defendant in error Childress, after the payment of the full amount of rent due by Fox, and on December 3, 1914, rented the storehouse to Joseph Shahada, who entered into possession at once and became the only tenant of defendant in error Childress. On June 15, 1915, Joseph Shahada was in arrears and owed to defendant in error Childress a balance of $260 as rent due for 4 1/2 months.
Lee R. Stroud, of Kaufman, and Wood Wood, of Dallas, for plaintiffs in error.
Terry Brown, of Kaufman, for defendants in error.
The only question for decision on appeal is as to the priority of liens. According to the findings of fact, Grossman Company had a chattel mortgage lien on the property which was executed by Joseph Shahada on October 16, 1914; and the rental contract between defendant in error Childress and Joseph Shahada originated and began on December 3, 1914. At the time of the rental contract of December 3, 1914, the defendant in error Childress had been paid in full all rent due him to that date. In these facts it is believed that the chattel mortgage lien is superior to and has priority over any lien in this case of the landlord Childress. Brackenridge v. Millan, 81 Tex. 17, 16 S.W. 555.
The judgment on the cross-action is reversed, and judgment is here entered in favor of the plaintiffs in error, with all costs.