Dunman v. Coleman, Mathis & Fulton , 59 Tex. 199 ( 1883 )

Walker, P. J. Com. App.—

The findings of fact by the judge are warranted by the evidence; there was evidence tending to establish the several conclusions drawn by him, and they are entitled to the same consideration as would be the verdict of a jury. Among the facts thus found was that the intervenor, Dunman, had failed to prove that any of the cattle which were seized by the writs of sequestration had been gathered and reduced to possession by said Dunman before the date of the sale to the plaintiffs. The court detemined, as a matter of legal construction of the contract between Coleman & Stockley and Dunman, that whatever rights to gather the one thousand head of cattle belonged to Dunman under it were derived from it as being an executory contract which empowered him to proceed and gather the cattle according to the terms which it provided, but that it was neither a mortgage nor was it' a sale. We are of the opinion that this construction of the contract is not the true one, and that when it is interpreted under, the light of the circumstances which attended the making of it, it must be held in legal effect to be a mortgage. The instruments of writing which evidence the obligation of Coleman & Stockley to pay Dunman for the stock of cattle were counterparts of the bill of sale, which conveyed title, to those purchasers, and thejr will be construed together as if they all formed a single instrument. And the purpose of the instruments of writing held by Dunman was to provide for payment of the price agreed on; and perhaps it may be inferred that Coleman & Stockley meant not only to secure Dunman thereby, but also to provide against creating a moneyed obligation on the purchase they were making to the extent of the values of the one thousand liead to be gathered by Dunman, and also in that mode to cause to have gathered of their cattle, free of expense to themselves, and to appropriate by a sale to Dunman at a satisfactory price, certain portions of their marketable stock. The instrument of writing recited the acknowledgment of payment of §7,250 by a bill of sale to a lot of cattle in the counties of La Salle and McMullen to the number of °a thousand head, more or less, and then provided for assuming the payment of unpaid claims on the beef books of Dunman, and recites thus: “ Furthermore, B. L. Dunman then agrees to gather one thousand head of cattle at his own expense, in the Mission Prairie ” (which limitation as to place was by another instrument altered so as to embrace all cattle belonging to the said Coleman & Stockley), said cattle to be gathered “at the following rates, to wit: yearlings, mixed (half and half), §6; cows and calves, §12; two years old, mixed (equal numbers), §9; dry cows, §10; three years old, beeves, §13.50,” etc.

The terms used allow, we think, the construction that Coleman & Stockley conveyed the title to a thousand head of their cattle as a charge upon their entire stock, as a security for the purchase money to be paid to Dunman. The whole stock thereby is not chargeable with the entire unpaid purchase price, but with no more than the value of one thousand head of cattle. The right conferred on Dunman to gather the thousand head may be assimilated to the duties and powers of a trustee in a deed of trust, or of a mortgagee with power to sell; he may execute in his own favor the contract thus intended to pay him for his property, and the terms and stipulations as to prices for the cattle thus gathered are duly provided for. If the mortgagee, Dunman, from any cause, could not execute the contract specifically, undoubtedly a court of equity would give proper effect to the instruments of writing, as an equitable mortgage, and afford proper and necessary relief to the vendor.

“A court of equity will recognize and sustain a contract creating a lien upon property as a mortgage whenever it appears from the contract that the parties intended it to operate as such.” Jones on Chattel Mortgages, sec. 12. See Whiting v. Eichelberger, 16 Iowa, 422. Although the language of the contract does not in terms or words express that a “lien” is given, or that Coleman & Stockley convey or “ mortgage,” or employ like expressions to indicate the creation of a lien upon the stock of cattle, yet we think that the contract allows of the construction that the permission given and agreement made, that Dunman shall gather one thousand head of cattle from the entire. stock, is, in fact, intended to, and does, subject the said stock to a lien and a charge as clearly as though it were so expressed. See sec. 13, Jones on Chattel Mortgages, and authorities there cited. See, also, section 14, id., and note 6. Several cases are quoted in sections 13 and 14 of Jones on Chattel Mortgages which illustrate the principle on which we act in determining this contract to be a mortgage. Thus a manufacturer having purchased wool and paid for it by his note indorsed by another for his accommodation, executed at the time of such purchase, a writing, reciting that the note was indorsed for the purpose of enabling him to purchase the wool, and declaring that the wool and the cloth to be made therefrom should belong to such indorser until the note should be paid; held to be a mortgage. Thompson v. Blanchard, 4 N. Y., 303; and see Atwater v. Mower, 10 Vt., 75; Caty v. Barnes, 20 Vt., 78; Moore v. Murdock, 26 Cal., 514. The court found that one of the plaintiffs had notice before tlieir purchase of the contract under which Gunman claimed a right to gather stock, and the firm being thereby bound by such notice, we conclude that for the erroneous construction given to the contract relied on by Gunman, the judgment ought to be reversed. The first and second assignments of error are not well taken. The plaintiffs sufficiently appeared from the petition to sue as partners. There was no exception, and the terms used, “ firm,” “ name and style,” ordinarily apply to associations known as partnerships.

The court treated the suit as being brought by the plaintiffs in the capacity of copartners, and therefore it was not necessary, on the death of one of them, to require his legal representative to be made a party. Because the intervenor had filed a plea in reconvention for damages, would not require the rule just stated to be varied, if it appeared from the record that the liability of the plaintiffs, if any, was a partnership transaction for which the partnership effects were liable; nor would the legal representative be cited if it appeared that the grounds alleged for reconvention did not arise out of the transactions and grounds of action set forth by the plaintiffs. It is not clearly shown that the court improperly refused to delay the trial in order that the representatives of Youngs Coleman, deceased, might be made a party. We conclude that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.

[Opinion approved March 30, 1883.]

Associate Justice Stayton did not sit in this case.