Opinion
No. 2148.
June 13, 1919. Rehearing Denied June 26, 1919.
Appeal from District Court, Red River County; Ben H. Denton, Judge.
Suit by the Mt. Pleasant Oil Mill against Holder Gibson, a partnership, and N. A. Gibson, individually, wherein plaintiff caused writ of sequestration to be levied on certain property, and the Roberts Seed Company, a partnership, filed claim under the statute. From a judgment against them, claimant firm appeals. Affirmed.
Chambers Dodd and Prentice Wilson, all of Clarksville, for appellant.
T. C. Hutchings and J. M. Burford, both of Mt. Pleasant, for appellee.
The appellee caused a writ of sequestration to be levied on the personal property in controversy, and the appellant filed a claim under the statute. Claiming to be the owner and entitled to possession of 25 tons of cotton seed, the appellee, a domestic private corporation, instituted suit in the district court of Titus county against Holder Gibson, alleged to be a copartnership composed of Ed Holder, N. A Gibson, and H. F. Difee and against N. A. Gibson individually, who claimed an interest in the property, and whose alleged interest was denied by the plaintiff. A writ of sequestration was sued out and directed to Red River county, where the constable of precinct No. 3 in that county levied upon and took into his possession "25 tons of cotton seed and all seed cotton situated and located in the seed house of Holder Gibson at gin at Sherry, Texas, in Red River county, Texas." The constable placed the value of the cotton seed at "twelve hundred and fifty dollars." Appellant in its affidavit of claim alleged that the Roberts Seed Company was a partnership composed of F. A Antone and F. R. Igo, and "that said firm claims the following described personal property, to wit, 25 tons of cotton seed." The appellant further alleged ownership of the cotton seed at the time of the levy of the writ, and that the cotton seed was "in the possession of an agent of the claimant," and "that the cotton seed was not and is not the property of either of the defendants." By supplemental petition the appellee denied that the cotton seed sequestered was in the possession of any agent of the claimant. After hearing the evidence the trial court peremptorily instructed a verdict against the claimant.
It is believed that there was no error in giving the peremptory instruction, for the burden of proof was on the claimant, and the evidence showed that the appellant did not have title to the cotton seed, either in themselves or through an agent, at the time of the levy of the writ, and that only the relation of debtor and creditor existed between appellant and Holder Gibson, defendants in the writ. The statute provides that if the property sequestered is taken from "the possession of the defendant in such writ, or any other person than the claimant," the burden of proof shall be on the claimant. Article 7786, Vernon's Sayles' Statutes. And where any claimant of property shall fail to establish his right thereto judgment shall be rendered against him and his sureties for the value of the property, with legal interest from the date of the bond. Article 7790, Vernon's Sayles' Statutes. The officer's return on the writ shows that the writ was executed "by levying upon and taking actual possession of 25 tons of cotton seed and all cotton seed situated and located in the seed house of Holder Gibson at gin at Sherry, Texas, in Red River county, Texas. Value estimated to be $1,250." And the evidence admittedly, and even without question, we think, shows that the cotton seed sequestered was at the gin and in the actual physical possession of the ginners, Holder Gibson, who were the defendants in the writ. And the evidence establishes as a matter of law that Holder Gibson were not holding possession of the cotton seed at the time of the sequestration as agents, or in the legal capacity of agents, of the appellant. The evidence showed that Holder Gibson, as a partnership, owned and operated a cotton gin at Sherry, in Red River county, and in the fall season of 1916 purchased the cot ton seed of the patrons of the gin. H. T, Difee, it appears, held an interest in the gin, by conveyance, until November of 1916. In the seed house of the gin plant was stored the cotton seed purchased by the said ginners, as well as that owned by the patrons, and each owner, when removing his cotton seed, took his quantity by weight.
It appears that Holder Gibson, by prearrangement with the Roberts Seed Company, gave checks on the City National Bank at Clarksville, which checks were paid by the bank, and each day the Roberts Seed Company refunded to the bank the money paid out on these checks of Holder Gibson. This arrangement was made by the Roberts Seed Company with Holder Gibson in order to obtain all the cotton seed collected at the gin. The checks given, it appears, were in payment of cotton seed and seed cotton purchased by Holder Gibson, and for labor and materials used in running the gin, hauling water, and for bagging and ties. The Roberts Seed Company kept an account of the money paid out to Holder Gibson, and charged the same to them; and when Holder Gibson delivered cotton seed at Clarksville to the Roberts Seed Company, credit was given them on the books of the Roberts Seed Company for the price of the seed, and in addition thereto $1.50 per ton as a commission for the buying. The Roberts Seed Company did not credit the account of Holder Gibson until the cotton seed were brought and weighed on the scales at Clarksville and then delivered to them; and it appears from the evidence that Holder Gibson received a profit from the seed delivered to appellant. Norton Gibson, of the firm, testified:
"We did not settle up until the end of the season, and then there was owing us [Holder Gibson] something over $1,000, and they [the Roberts Seed Company] gave us a check for that amount"
The evidence established, we think, as a matter of law, the relation of debtor and creditor between the Roberts Seed Company and Holder Gibson. Failing, as appellant did, to establish the ownership of the seed, then the appellee was entitled to the judgment. On the date of the instrument the following bill of sale was made:
"Talco, Texas, November 2, 1916.
"For and in consideration of $54 per ton I hereby sell to the Mt. Pleasant Oil Mill all seed, being about 20 or 25 tons, owned by the Holder Gibson gin at Sherry, Texas, and now stored in their seed house at said gin; proceeds to be credited on my account with said oil mill.
"[Signed] Holder Gibson, by H. T. Difee.
"H. T. Difee."
At the date of the bill of sale there were about 25 tons of cotton seed in the seed house at the gin that the said firm had purchased, and which was in their actual possession at the time. The appellee's right to sue out the sequestration writ was in virtue of this bill of sale. The value of the seed at the time of the levy of the writ, was, it appears, $50 or $52 per ton. Assignments of error Nos. 3, 5, 6, 13, 15, and 16, all pertaining to the giving of the peremptory instruction are therefore overruled.
It is concluded that assignment of error No. 1 should be overruled, as presenting no reversible error.
The officer's return on the sequestration writ showed that he valued the cotton seed at the time of the levy of the writ, at $50 a ton, and the appellant Antone testified that the seed were worth on an average of $50 or $52 a ton. The judgment rendered was for $50 per ton. The fourteenth assignment of error is overruled.
The remaining assignments of error have each been considered, and it has been concluded that they should be overruled.
Judgment affirmed.