Commercial Credit Equipment Corporation Et Al v. Clyde C. Elliott

Commercial Credit Equipment Corporation brought suit against Clyde C. Elliott on three purchase contracts on cotton harvesting equipment purchased by the defendant. Plaintiff alleged that a November 30, 1964 purchase agreement was in default because of the failure of defendant to pay a January 2, 1965 installment in the amount of $1,716.55; that plaintiff deemed itself insecure on two other purchase agreements with installments due in October and November of 1965 and asked that said notes be accelerated and declared due, and prayed for foreclosure of the chattel mortgages securing the indebtedness evidenced by each of said purchase contracts. A Writ of Sequestration was obtained by appellant and all the equipment covered by said contracts was taken into possession by the Sheriff and delivered to the plaintiff under a replevin bond on which Fidelity and Deposit Company of Maryland was surety. It is stipulated that the sequestered property was sold by Commercial prior to the time of the trial. Elliott filed a cross action for damages alleging a wrongful sequestration. He alleged that the January 2, 1965 due date of the first installment on the November 30, 1964 purchase agreement was inserted therein by mutual mistake; that under the agreement between the parties no payment was due thereon until the 1965 cotton picking season. He further alleged in the alternative that the January 1965 due date was fraudulently inserted in such purchase agreement by appellant. The case was tried before a jury and based on the verdict judgment was rendered for Elliott against Commercial Credit Equipment Corporation and its surety Fidelity and Deposit Company of Maryland for actual and exemplary damages. The defendants have appealed.