Roche v. Dale

EIDSON, Associate Justice. This is a suit by appellee, Dale, against Henry Bethan, appellant Boche and Jones, Bogers & Bogers for debt, claimed to be due by Bethan to Dale and alleged to be secured by a chattel mortgage on the crop of cotton raised by said Bethan on Boche’s land for the year 1904) a part of which cotton plaintiff alleged had been converted by defendants, and praying for judgment against Bethan for the debt and a foreclosure of said mortgage against the other defendants for the cotton alleged to have been converted by them respectively. Appellant, Boche, answered in the court below, alleging that Bethan owed him for°advances to enable him to make the crop, denying a conversion of any part of said cotton and claiming that he had applied all of the proceeds of the cotton received by him to the payment of his claims secured by his landlord’s lien. Bethan answered that he had paid Boche all he owed him for advances, "and prayed for a judgment over against Boche for value of the cotton which he alleged Boche had converted. Jones, Bogers & Bogers answered denying that they had bought any of the cotton, but if° they had bought any they bought it from Boche and prayed for judgment over against Boche for any amount plaintiff might recover against them. On trial before the court and jury a verdict and judgment was rendered for plaintiff against Bethan for plaintiff’s debt against him, with *290 foreclosure of mortgage, and against Bethan and Roche for $140.61, and that plaintiff take nothing as against Jones, Rogers & Rogers, and judgment was also rendered for Roche against Bethan for $63.70 and foreclosing a mortgage on a certain mule for $41.60. Roche alone has perfected an appeal to this court. The court below did not err in admitting the mortgage in evidence over the objection of appellant, as shown in his first assignment of error, in view of the fact that it was shown by the evidence that Henry Bethan, the party who executed the mortgage, was as well known by the name of Henry Bethel as by the name of Henry Bethan. The charge of the court complained of in appellant’s third assignment of error is not subject to the objection that it is on the weight of the evidence, as it leaves the jury to determine whether or not the state of facts embraced in the charge existed, before they could find as therein directed. And besides, the jury did not find against appellant under this charge. • There was no error in the action of the court below complained of in appellant’s fourth to eighth assignments of error, both inclusive. The verdict returned being informal and not responsive to the charge, it was proper for the court to decline to receive it and to call the attention of the jury to such defects and direct them to correct the same. (Sayles Rev. Stat., arts. 1326, 1327; Oriental Inv. Co. v. Barclay, 64 S. W. Rep., 90.) Appellant’s ninth assignment of error is not well taken. Bethan’s pleadings alleged that Roche had disposed of certain cotton in the seed belonging to him and certain bales of cotton and the seed out of same, which he had turned over to Roche to sell, and that he, Roche, had never accounted to him, Bethan, for any of the proceeds thereof. The charge of the court instructing the jury that if they believed from the evidence that defendant. Roche received defendant Bethan’s half of any of the proceeds of cotton sold from the Bethan crop and had not accounted to Bethan therefor, they should find a verdict in favor of defendant Bethan against defendant Roche for same, was authorized by said pleadings, and the language, “received defendant Bethan’s half of any of the proceeds of the cotton sold from the Bethan crop,” included the„ seed of the cotton as well as cotton in bales or lint cotton, and the finding of the jury complained of in this assignment was therefore fully authorized. There was no error in the action of the court below in refusing to give to the jury the appellant’s special charge No. 2, as the subject to which it relates was fully covered by the third paragraph of the general charge of the court; and, besides, the uncontroverted testimony shows that whatever of the mortgaged property was converted to other than its proper purpose, appellant participated in such conversion, and therefore there was no evidence authorizing this special charge. Appellant’s eleventh and sixteenth assignments of error are overruled. The testimony fails to show that appellant furnished the mule to the renter, but after the renter had purchased same on a credit and given his note with a mortgage on the mule to secure the payment thereof, and after the note fell due, appellant paid the note off and had it transferred to him and thereby became the owner thereof with the mortgage to *291 secure it. This transaction simply constituted a payment of the note to the owner thereof and a procurement of the security held by the original owner of said note, which was the mortgage on the mule, but did not make appellant the owner of the mule so that he could furnish it to the renter. » There was no error in the refusal of the court below to give to the jury appellant’s special charges líos. 6 and 8 as there was no evidence authorizing them. The uncontroverted evidence shows that none of the mortgaged property was sold without the permission of and practical participation in such sale by appellant. He testified that he considered Bethan’s cotton practically his own; that he controlled it and that he considered he had a right to hold it and would not permit any of it to be sold without his consent. This being true, appellant would be liable for the conversion of the mortgaged property, although he applied the proceeds to a debt owing him by the mortgagor. The jury having found in favor of appellant for a foreclosure of the mortgage on the mule without stating specifically the amount of the debt secured by the mortgage and the uncontroverted evidence showing such debt to be $43.60, the court did not err in rendering judgment that the mortgage be foreclosed for that amount. The statement of the trial judge complained of in appellant’s eighteenth assignment of error could not affect appellant prejudicially. If anyone could justly complain of said statement, it would be appellee. " The jury found nothing against appellant for any sales made to Jones, Bogers & Bogers. For reasons already stated, appellant’s twenty-third assignment of error is overruled. There was sufficient testimony to justify the jury in finding the item complained of in appellant’s twenty-fourth assignment of error. The findings of the court complained of in appellant’s twenty-fifth assignment of error was not prejudicial to appellant, as under the law he had no lien upon the mule except that afforded by the mortgage. Appellant’s other assignments of error relate to the sufficiency of the testimony to sustain the verdict and judgment. Without discussing it in detail, we are of opinion that the testimony shown by the record is amply sufficient to sustain the verdict and judgment. The judgment of the court below is affirmed. Affirmed.