68 Tex. 349 | Tex. | 1887
Appellant brought this suit in the court below against appellees to recover damages for the wrongful and malicious suing out of an attachment. Appellant had a flock of sheep in Throckmorton county, which was in charge of one W. B. Hamilton. Hamilton contracted an indebtedness with appellees amounting to two hundred and sixty-seven dollars and ten cents, for which he gave them a draft on appellant, but which was not paid. Appellees thereupon brought suit in the latter county against appellant and Hamilton on the account, and sued out- a writ of attachment which they caused to be levied upon appellant’s sheep. • The affidavit for the attachment, as special grounds for obtaining the writ, stated only that defendant Farrar was not a resident of Throckmorton county, and that defendant Hamilton secreted himself so that ordinary process of law could not be served upon him. The sheep were levied upon by virtue of the suit as the property of Hamilton, and described as “the James Farrar and W. B. Hamilton sheep.” The suit was brought on the thirteenth day of June, 1885, and dismissed on the twenty-sixth day of the same month as to Farrar, and on the fifteenth September, 1885, as to Hamilton.
On the trial of the case before us, appellee Talley testified that he instructed the sheriff to levy upoq the sheep, and that he dismissed his suit in September, because one Major Smith wanted
Hnder this state of facts, the court below concluded that appellant was entitled to recover no damages, either actual or exemplary, and gave judgment for the defendants.
The assignments of error are numerous, but need not be considered in detail. They are sufficient to raise the question of the correctness of the conclusion and the judgment of the court.
In our opinion the court erred in its judgment. That the attachment was wrongfully sued out there can be no question. The appellees, as the evidence shows, had no ground whatever for an attachment. In the first place, appellant owed them nothing. They wholly failed to show that Hamilton had authority to buy the goods on Farrar’s credit. That Hamilton could not charge appellant by representing himself as the agent of the latter is too clear for discussion. Hor did the fact that Farrar paid Hamilton’s drafts on former occasions prove that an. agency existed; nor did it estop Farrar, as the court below concluded, from denying that Hamilton was authorized to purchase the goods on his account. But, even had a debt existed, the affidavit shows no ground for suing out the writ; and the testimony
In determining the question of damages, the court below seems to have proceeded upon the idea that if live stock other than work animals be unlawfully seized and subsequently released, in better or more valuable condition than when taken, no action will lie for the wrong. This we conceive to be erroneous. The injured party in such case is entitled to his action, and to recover at least nominal damages and costs. (Champion v. Vincent, 30 Texas, 811.) But such is not all of appellant’s case. The court, it is true, finds as a matter of fact, in effect, that the sheep were returned to him by appellees. But the undisputed fact is that they were not returned, but were merely released from the attachment and left with the sheriff to be sold under an execution against Hamilton—appellees receiving the amount of their debt as a consideration of the discharge of their levy. If they had placed the property back into the possession of appellant, they would have repaired their wrong pro tanto, and under the evidence may have been liable only for nominal damages for the mere wrongful issue of the writ.
In Heilbroner v. Douglas, 45 Texas, 402, it was held that the release of property from an attachment by the plaintiff in the suit does not relieve him from liability for its value when it is lost to the defendant without any fault on his" part. In Champion v. Vincent, supra, the defendant had killed the plaintiff’s hogs and had returned him the carcasses, and the court held that, although the animals may have been worth as much slaughtered as when alive, yet plaintiff was entitled to recover nominal damages for the trespass, and that the defendant having committed the act “deliberately and in willful violation of plaintiff’s rights, In a manner and under circumstances of aggravation, showing a violent, reckless and lawless spirit,” the law would allow also exemplary damages by way of punishment for the wrong.
It follows, from what we have said, that we are of opinion
The judgment is reversed and the cause remanded.
Reversed and remanded.