72 S.W. 413 | Tex. App. | 1903
The City Bank of Whitesboro, Texas, recovered a judgment in justice court for $131 against G.W. Deleshaw, E.T. Edelen and H.E. Maxwell on a promissory note executed by them jointly, which was a substitute for a note previously executed by them as sureties for a son of G.W. Deleshaw. This judgment the bank transferred to G.W. Deleshaw upon his executing to it his individual note for the amount of the judgment, which was accepted as payment in full by the bank. Thereupon Deleshaw took out execution on the judgment and had it levied on the property of W.T. Edelen, who brought this suit to enjoin the sale and to recover damages, both actual and vindictive, the levy resulting in closing the saloon of Edelen at Dexter, Texas, for a few hours. From a verdict and judgment in his favor this appeal is prosecuted. *417
The contention of Edelen was that Deleshaw was primarily liable to the bank for the payment of the note merged in the judgment, and that both he and Maxwell had signed it as sureties merely, and that Deleshaw had paid off and extinguished the judgment.
On the other hand Deleshaw contended that all were jointly and equally liable, and that in giving his note to the bank for a transfer of the judgment to him he intended to keep it alive and use it to compel contribution from Edelen and Maxwell, the bank accepting his note in lieu of the judgment with that understanding.
On the issue of suretyship the evidence was conflicting. Upon the other issue, while appellant admitted that the bank had accepted his individual note in full satisfaction of the judgment, as was shown by the written transfer offered by him as well as by entry on justice's docket, he offered to prove the circumstances attending the transaction for the purpose of showing that it was the understanding and intention of both himself and the bank that the judgment should be kept alive for his benefit against his co-obligors. The court excluded this evidence, and instructed the jury that the issuance as well as the levy of the execution "was wrongful and illegal," and to those ruling error is assigned.
The question thus raised is one upon which the authorities are at variance, the courts of New York and some other States holding that, "where one of several defendants against whom there is a joint judgment pays the other party the entire sum due, the judgment becomes thereby extinguished, whatever may be the intention of the parties to the transaction;" while many other courts of equal authority, taking a broader view, give controlling effect to the intention of the parties. 2 Freem. on Judgm., sec. 472; Merchants Bank v. Opera House Co. (Mon.), 45 Law. Rep. Ann., 285. The reasoning of the court in the case just cited, in which the two lines of decision are reviewed and the New York rule is rejected, meets with our approval, and accords with the views heretofore expressed by this court. Huggins v. White, 7 Texas Civ. App. 563[
Our Legislature has also manifested disapproval of the New York rule in giving a surety who has paid the judgment an execution against his cosurety, thus keeping the judgment alive in such case even when it is paid without any assignment of it, or any agreement or understanding that it shall be kept alive. Rev. Stats., art. 3816.
In cases where the judgment may be kept alive by contract there would seem to be no necessity for legislative action, and none seems to have been taken. The general policy of our law to avoid a multiplicity of suits would seem to warrant, if not encourage, the making of a contract on the part of one paying off the judgment for a transfer of it to himself so as to keep it alive for convenience in compelling contribution from his codefendant in the judgment, thus avoiding unnecessary litigation. But our Supreme Court, in the case of Daugherty v. Bank,
The proposition under the seventh assignment, complaining of the charge of the court for submitting the loss of sales, or rather the profit so lost, as the measure of damages, challenges the sufficiency of the petition to warrant this charge. The allegations of the petition were quite general, to the effect that the levy upon the saloon of plaintiff below had injured his business and trade, but in the absence of special exceptions they were sufficient to warrant the action complained of.
Under the thirteenth assignment it is contended that the jury should not have allowed the item of $50 to cover attorney's fees as part of the vindictive damages, because the proof failed to show that plaintiff had paid or would be compelled to pay this amount to his attorneys. It did show, however, that he had been compelled to employ attorneys, and that he had employed two firms of lawyers, and made four trips to Sherman and Gainesville looking after the case, and the item allowed by the jury was admitted before them to be a reasonable attorney's fee. So we think there can not be much in this contention, especially in view of the wide discretion given a jury in fixing the amount of vindictive damages. Whether or not the facts warranted any recovery of vindictive damages is not presented by the brief.
The next and last complaint is of the judgment upon the ground that it went farther, in enjoining the execution of the justice court judgment, than was warranted by the pleadings and verdict. The petition charged that the justice court judgment had been "paid off and satisfied in full," and prayed that the injunction be made perpetual and for general relief, which we think was sufficient. The verdict was as follows: "We the jury find for the plaintiff as follows: Actual damages against both defendants $15; vindictive damages against defendant Deleshaw as follows: attorney's fees $50, expenses $20." This verdict should, we think, be treated, under the ruling and instructions of the court, as importing a finding that the judgment had been paid off and extinguished, else the jury could not have found any general verdict for plaintiff below, especially upon the issue of vindictive damages. Pearce v. Bell,
The judgment is therefore affirmed.
Affirmed.
The motion is overruled.
Overruled.
Writ of error refused. *420