Block, Oppenheimer & Co. v. Sweeney & Coombs

63 Tex. 419 | Tex. | 1885

Stayton, Associate Justice.

The appellees claim to have purchased from J. S. Mills, on Hovember 1, 1883, his entire stock of goods for the sum of $4,500.

There is very considerable conflict in the evidence in reference to the value of the goods, varying from $4,500 to $15,000.

The evidence of the appellees themselves shows that they were intending and thought they were purchasing the goods at about half their cost. One of them stated that “ when goods were sold in bulk, as those were, fifty cents on the dollar is about as much as they ever sell for; ” thus attempting to show what the fair market value ivas. They, however, stated that they expected to realize a larger sum for them by selling at retail.

After the goods were seized by the sheriff, they were sold under an order of the court, but at ivhat time that sale was made does not appear. It was practically a sale in small parcels, at auction, which continued six or seven days, and thus the goods sold by the sheriff were made to bring $7,276.80.

There was a verdict and judgment for appellees for $7,728.32, for actual damages.

The court instructed the jury as follows: “If you find for plaintiffs, find for them the fair and reasonable market value of the goods at time and place of seizure, and eight per cent, per annum interest thereon from that time to this date; such valuation, of course, not to be less than the price for which said goods were actually sold; and the amount you may so find is actual damages.”

This charge was erroneous and misleading.

The first part of the charge was correct, and gave the true measure of damages in an action for the conversion of goods. Blum v. Thomas, 60 Tex., 161; Tucker v. Hamlin, 60 Tex., 174. :

The latter part of the charge was erroneous, and under the facts misleading.

The sale was made at some time subsequent to the seizure and practically at retail, and could not be made the measure of damages.

The value of the goods may have increased between the time of seizure and of sale.

• Interest, in addition to the market value at the time and place of seizure, is the compensation to which a person in an action of this kind is entitled.

If between the time of seizure and sale the property depreciates in value, that cannot affect the right of the person whose property has been illegally converted; and if it increases in value, that fact cannot affect the amount of the recovery.

If a stock of goods seized be sold in original packages, or in the manner in which a sheriff, acting for the best interests of the parties interested, would ordinarily sell, the price which they brought at such a sale would' be a fact to which a jury might look, in connection with other facts in evidence, for the purpose of ascertaining the value of the goods at time of seizure; but this would be but a fact, not establishing the minimum or real value of the thing sold.

The charge given precluded the jury from finding that the goods at time of seizure were of value less than they sold for at a subsequent period.

That there may have been a preponderance of evidence, in the opinion of the court below or in the opinion of this court, tending to show that the verdict of the jury was not excessive, does not obviate the objection, for there was evidence from which the jury might have found that the goods at the time and place of seizure were not of value equal to the sum for which they were subsequently sold.

Some of the charges asked by the appellants contained a correct" legal proposition, but they each would have been charges upon the weight of .evidence, and the court correctly refused to give them.

It is true, if the property was seized by the sheriff under a distress warrant issued at the suit of Latham for rent due to him from Mills, which Sweeney & Coombs failed to pay, after having agreed to do so, as a part of the price of the goods, that such seizure, so far as made to secure that debt, would operate as a defense to the sheriff; for to that extent the seizure would be legal whether the sale to Sweeney & Coombs was fraudulent or not.

Ho damages could result to them from such seizure, admitted to be valid and secured by lien on the goods to enforce which the seizure was made.

The appellees could not recover from the sheriff or the other appellants, in any event, such sum as may be paid, on the debt due to Latham, out of the proceeds of the goods seized; otherwise they would recover the full value of the goods seized, and at the same time have a part of the proceeds applied to a debt which they were personally bound to pay, and secured by a lien on the goods fully recognized by them at the time they purchased.

If the pleadings and evidence were sufficient to enable the appellants to maintain this defense, and without critically examining that question we may say that, in the absence of a special demurrer, the pleadings were probably sufficient, then the appellants should have asked a charge upon this subject.

This was not done, and the judgment could not be reversed for the sole reason that the court failed to give a charge upon that subject, when not asked to do so. The failure to give such a charge no doubt led to an excessive verdict, which gives to the appellees a sum which the facts show they were not entitled to, if entitled to a verdict at all. The excessive character of the verdict, in view of these matters, was urged in the motion for a new trial.

The appellants also sought a new trial, on the ground that the evidence did not authorize the finding that the sale made by Hills to Sweeney & Coombs was not made with intent to defraud the creditors of the former with full knowledge of that fact by Sweeney & Coombs.

We have carefully examined all the evidence in the case, and feel constrained to say that the undisputed facts are of such a character as to have required the court below to grant a new trial, Edmundson v. Silliman, 50 Tex., 112; Chandler v. Meckling, 22 Tex., 42; Humphries v. Freeman, 22 Tex., 50; H. & T. C. R’y Co. v. Schmidt, 61 Tex., 285.

The evidence renders it as certain and clear as such a question can be made that Hills was insolvent, and that he made the sale to Sweeney & Coombs for the purpose of defrauding his creditors, and that such was their situation and past course of dealing with him, that it is impossible for an unbiased mind, in view of all the facts in tho case, to avoid the conviction that Sweeney & Coombs knew of his fraudulent purpose and assisted him. in it.

In view of the fact that the cause will have to be remanded, it is not deemed proper to analyze or comment, upon the evidence found in the record.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered February 27, 1885.]