Clow Gasteam Heating Co. v. Hixson (67 S.W.2d 619, 1933)

LOONEY, Justice.

On October 10,1930, Clow Gasteam Heating Company sold and delivered to Don and Wesley Peacock, Jr. (a copartnership, under the name of Peacock Military Academy), twenty-seven Clow Gasteam radiators, the consideration being $1,864, paid and to be paid as follows: $75 cash, and the balance in twenty-four equal consecutive monthly installments, evidenced by a promissory note.

The sale contract between the parties, in legal effect a chattel mortgage, contains the following: “If I fail to make any of said monthly payments as above specified, at the option of you or your assigns, all remaining installments may be declared immediately due and payable, and in such event I agree to return the said chattel to said Company or its assigns, on demand, and said Company, or its assigns, may without notice of demand and without legal process enter into premises and take possession of said chattel and make such disposition thereof as may be deemed desirable, and all payments made shall be retained as liquidated damages for the use of said chattel or said chattel may be sold with or without notice at public or private sale and the proceeds thereof, less expenses, credited upon the amount unpaid. I further agree to take good care of said chat-, tel and to be responsible for its loss by fire, theft or other casualty and not to remove it from Peacock Military Academy, Dallas, Texas, unless I first obtain the written consent of said Company or its assigns. Said chattel shall not become a part of the realty.”

The récord discloses that on November 23, 1932, the court below, at the suit of Mayfield Lumber Company, a creditor of the Peacock Military Academy, appointed W. C. Hixson receiver