48 S.W. 627

MECHANICS' BANK OF ST. LOUIS, MO., et al. 
v. 
GULLETT GIN CO.

Court of Civil Appeals of Texas.
December 3, 1898.

        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        Claim suit between the Mechanics' Bank of St. Louis, Mo., and others, plaintiffs, and the Gullett Gin 
Company, claimant. Judgment for claimant. Plaintiffs appeal. Affirmed.
        Bell & Williford and Boyd, Compton & Anderson, for appellants. Anderson & Moses, for appellee.

        FINLEY, C. J.
        Plaintiffs, the Mechanics' Bank of St. Louis, Mo., and the J. S. Brown Hardware Company, being 
judgment creditors of one J. S. Talley, caused their executions to issue upon their judgments, and placed 
same in the hands of the sheriff of Freestone county, Tex., and caused same to be levied on the 7th day 
of July, 1897, on certain gin and mill machinery in possession of J. S. Talley, at Wortham, Tex., which said 
machinery was valued by the sheriff at $1,250. On the 17th day of July, 1897, the Gullett Gin Company, 
by its agent, Col. E. Kerr, presented to the said sheriff its claimant's oath and bond, as provided by law; 
and said property was by the sheriff delivered to claimant, and said oath and bond returned by the sheriff, 
and filed in the district court of Freestone county, for trial of the rights of property. On the 18th day of 
February, 1898, issues being joined under directions of the court, the cause was called for trial, a jury 
waived, and the cause submitted to the court; and the court, after hearing the pleadings, evidence, and 
the argument of counsel, rendered judgment for claimant, to which judgment, plaintiffs, in open court, 
excepted, and gave notice of appeal, and have perfected their appeal.
        The court filed the following conclusions of fact and law:
        "On the 14th day of June, 1897, the defendant agreed with one Talley to sell him a complete steam 
cotton gin outfit, including the property involved here. This agreement was in writing, and in terms 
following: `Gullett Gin Co., Amite City, La. On or about July 1st, 1897, or as soon thereafter as possible, 
you will please ship to J. S. Talley, station Mexia, Texas, in car with J. F. Beasley, by route you think best 
and cheapest: 1-11×16 plain side-crank Atlas engine, class C, right hand over stroke; specifications as per 
estimate No. 11 C. Two injectors and connections. Steam feed and exhaust pipe; foundation bolts and 
bars. 1-46×12 horizontal F large steel tubular Atlas boiler, with fixed dome ¾ front; specifications, other 
trimmings as per estimate 40. 2-70 saw, Gullett single drive, plain gin beats R. H. outfit complete, as per 
specifications on page 22 of Gullett's 1896 catalogue (condenser to set right of gins). One 18' Nordyke 
and Mormon vertical null, one 3-ton wagon scales 60' 2 7/16" shafting (3-20), 4 boxes, 4 adjustable post 
hangers, 2 F. large couplings. 1 dental clutch coupling 4½×2 7/16. Pulleys and belting as per 
specifications attached (70" of piping for steam packer belt geared press desired). Which machinery I 
agree to receive on arrival, and pay all freight and charges thereon, and in addition thereto the sum of 
twenty-one hundred and seventy dollars, as follows: Cash on arrival, $____; on Oct. 1st, 1897, $361.66; 
on Dec. 15th, 1897, $361.66; on Oct. 1st, 1898, $361.66; on Dec. 15th, 1898, $361.66; on Oct. 1st, 
1899, $361.66; on Dec. 15th, 1899, $361.70. For which deferred payments I agree to give you notes on 
the arrival of said property. In case I fail or refuse to receive and accept said property, or any part 
thereof, or to execute said notes or deed of trust as hereinafter provided for, or to in any other way 
comply with this order and contract, such failure or refusal shall immediately mature,


Page 628

whatever liability I incur by this order and contract; and I agree to pay you whatever amount I may be 
liable for, whether as damages or otherwise, because of such failure or refusal, together with ten per cent. 
additional thereon as attorney's fees in case of suit therefor, or if placed in an attorney's hands for 
collection. All notes to be given on your blanks, and payable at Mexia, Texas, with exchange, and shall 
bear interest at the rate of 10 per cent. per annum from date until paid, and, if not paid at maturity, 10 
per cent. per annum from date of this order, and provided, if placed in the hands of attorney for collection, 
or suit is filed, 10 per cent. on amount unpaid as attorney's fees; and in case of failure to pay either of 
said notes at maturity, or if the holders thereof reasonably deem themselves insecure, you shall have the 
right to declare all said notes due and payable, and proceed for the collection of the same. In order to 
secure you in the fulfillment of this contract, and the payment of the purchase money, and to secure you 
whatever amount, with attorney's fees, I may incur because of failure or refusal to comply with this order 
or contract, I hereby mortgage and give you a lien on said property above ordered, and also on the 
following described personal property: Gin site and improvements thereon and to be added. And, in 
addition to this preliminary lien, I agree to give you, when said notes are executed, a deed of trust on all 
said property, on your printed forms, to secure the payment of said notes; and, when received, I agree to 
insure same in some reliable insurance company, loss, if any, payable to the Gullett Gin Co., as its interest 
may appear, and continue the insurance until all indebtedness thereon is fully paid, and to deposit the 
policy with you for safe-keeping. And, in the event of its loss or damage by fire or otherwise, such loss or 
damage shall have the effect to immediately assign and transfer to you whatever insurance policy I have 
thereon, and on my gin property, whether the same was taken out for your benefit or not. This order is 
given subject to acceptance in writing by you, and no promise or agreement, unless expressed herein or 
annexed hereto in writing, shall be binding on either I or you; and, after acceptance by you, you are in no 
way to be held liable for damages for delay in filling this order, when such delay is caused by factory, 
railroad, or any other cause beyond your control. The title of the property herein ordered shall remain in 
you, at your option, until settlement is made therefor by notes and deed of trust as above provided; and 
this order cannot be countermanded. That you warrant the machinery ordered to be manufactured of good 
material, and that with proper management it will perform well. If the said machinery, or any part thereof, 
shall fail to fill this warranty, written notice shall be given immediately to you, at Amite City, La., stating 
wherein it fails to fill the warranty, and reasonable time and friendly assistance given to remedy the 
defect, if any; and if it cannot be made to operate, and the fault is in the machinery, the defective part is 
to be taken back and substituted, but, if it fails to perform through improper management or want of skill, 
then I agree to pay all necessary expenses incurred. Continued use of the machinery for ten days shall be 
conclusive evidence of the compliance with this warranty; and, in the event I fail or refuse to pay either of 
said notes when due, I then, and in that case, waive said warranty by you, and hereby expressly agree to, 
and do, take such machinery, and every part thereof, regardless of any defects therein; and this contract 
shall not be waived or set aside by taking said notes or deed of trust, or any other fulfillment thereof. And, 
in the event any one or more of the articles above ordered should in any way not comply with the 
warranty above or under which they are sold, then such failure shall in no way be held to affect this 
contract, or the notes and trust deed in accordance therewith, for any of the other articles named; but 
such failure shall only affect said contract and notes to the extent of such failure or such articles so failing. 
Should there be any failure on your part to ship the above ordered goods at the time agreed upon, the 
acceptance of the same by me, it is agreed, shall be a waiver of all claims for damages by reason of such 
delay. This 9th day of June, 1897. J. S. Talley. P. O., Fairfield, Texas; Banking Town, Mexia.' And accepted 
by said Gullett Gin Co., by letter as follows: `Amite City, La., June 14, 1897. Messrs. J. S. Talley & Son, 
Fairfield, Texas—Gentlemen: Your order, through our Mr. Kerr, received and accepted. Many thanks. 
Yours, truly, Geo. A. Peete, Mngr.' (2) On the 1st day of July, 1897, the property in suit was shipped by 
defendant to Talley, from Indianapolis, Ind., to Wortham, Tex., and consigned to J. S. Talley. Same 
arrived at Wortham, and was by defendant delivered to Talley, he paying freight on the 7th day of July, 
1897, and was after such delivery, on the same day, taken in execution in behalf of the plaintiffs, who 
were judgment creditors of said Talley, in the amounts named in their respective executions. (3) The said 
property so seized was delivered by defendant to Talley without the previous or simultaneous execution by 
him of notes and mortgage to secure payment therefor. (4) The remainder of the gin outfit was shipped 
and delivered to said Talley after said levies, in lots arriving at different times, and coming from different 
places, and part of same was received by Talley after he made the notes and mortgage mentioned in the 
next paragraph. (5) On the 19th day of July, 1897, Talley executed the notes and mortgage covering the 
price of the entire outfit, including the articles in suit, which meanwhile had been claimed by defendant. 
(6) The value of the property involved I find to be $800."
        Conclusions of Law: "(1) By the terms of


Page 629

the contract between defendant and Talley, title to the property remained in the defendant until delivery 
of the property to Talley, and the execution by Talley of the notes and mortgage to secure the purchase 
price. (2) The contract was not a reservation of title to, or property in, chattels, as security for the 
purchase money thereof, with possession delivered to the vendee; but, by the contract, the sale was not 
complete, and title did not pass, until the delivery of the property to the vendee, and the execution by him 
of the stipulated notes and mortgage. (3) It was not contemplated by the contract that defendant should 
reserve title to secure the price of the property, but that the purchaser should secure the price by notes 
and mortgage; and as there remained on Talley's part to be done and performed one of the terms of the 
contract, to wit, the execution of the securities, the title had not passed, though there had been manual 
delivery. (4) Were the contract to be construed as reserving title to secure purchase price, yet plaintiffs, 
being neither creditors nor bona fide purchasers, within the statute, cannot invoke the judgment of the 
law upon such contract, which is, as to the original parties, not a mortgage, and is made a mortgage by 
the statute only as to bona fide purchasers and lien creditors. (5) The subsequent delivery by defendant to 
the said Talley of the balance of the property, and the execution by Talley of the notes and mortgage 
before the receipt of the last lot, did not affect, either beneficially or injuriously, the rights of the plaintiffs, 
which, whatever they were, were fixed by the levy of the executions. The property in suit was not subject 
to the plaintiffs' executions, and defendant ought to have judgment."
        We are of the opinion that the court pronounced the proper judgment upon the facts of the case, and 
it is therefore affirmed. Lang v. Rickmers (Tex. Sup.) 7 S. W. 527; Hall v. Brown (Tex. Sup.) 17 S. W. 
715; Bank v. Henderson (Tex. Civ. App.) 29 S. W. 562; Bowen v. Wagon Works (Tex. Sup.) 43 S. W. 872.