Freeman v. Perry

25 Tex. 611 | Tex. | 1860

Wheeler, C. J.

The merits of this case depend upon the question whether there had been a sale and transfer of the cotton by Kohn to the defendants, Heald, Massie & Co., before the plaintiff purchased. Upon the evidence in the record it ca.n not be affirmed that there had been such a sale and transfer. There is a considerable portion of this cotton which had not been delivered to the warehouseman when he gave his receipt of the 26th of January, and that which had is not identified by the evidence as the cotton embraced in the receipt. The contract of the 24 thof March does' not evidence a sale, but a contract of sale thereafter to be executed by the delivery of the cotton.. It was not delivered under that contract. The defendants, by their agent, refused to receive it. Upon the evidence in the record it is free from doubt that the case was rightly decided on the merits. The only question which it is material to consider is, whether the court erred in excluding evidence offered by the defendants.

We are of opinion that the court did not err in refusifig to allow the defendants, Heald, Massie & Co., to introduce their co-defendant Freeman as a witness in their behalf. He refused to deliver the cotton to the plaintiff, setting up as an excuse the title of his co-defendants. Generally a bailee is bound to deliver the goods back to the person by whom he has been intrusted with the custody of them. And if the defendant, Freeman, had refused to deliver the goods to the plaintiff because he was not his bailor, and had detained them to await the order of the bailor, and the order was not produced, it would have- presented a different question. ■ But it appears by the answer of the defendant that he did not rest his right to detain the property upon this ground, but upon the ground that his co-defendants had the sole right to control it. He, therefore, undertook to decide between the conflicting claimants, neither of whom was his bailor. In doing so he acted at his peril; and if he decided wrongly he laid himself liable for the costs that had been incurred before the property was taken into the custody of the law; and this was sufficient to disqualify him as a witness for his co-defendants.

There is more cause to question the propriety of rejecting the witness Scott. The objection to the witness proceeded on the ground that the verdict and judgment in this case might be evidence in the suit pending between the witness and Kohn for a malicious prosecution. But it is not perceived that such use could be made of the verdict 'or judgment. It is not between the same parties. It is not the case of a judgment which constitutes a muniment of title; nor would it be evidence in the suit for malicious prosecution of the right of property in the cotton; still.less of a lien upon it at the time of the sale by Kohn to the plaintiff, with a view to bear upon the question of probable cause for the alleged malicious prosecution. A judgment is always admissible to prove its existence as a fact and its legal consequences; but it is not receivable to prove the facts upon the supposed existence of which it was rendered; nor indeed anything beyond its own existence and the legal consequences resulting from it. The verdict in this case could not be received in the action for malicious prosecution to prove title in either party anterior to its rendition. This supposed ground for rejecting the witness was, therefore, untenable, and none other was urged. The exclusion of the witness was, therefore, erroneous. As the evidence upon another trial may be different, it would be an unprofitable consumption of time to revise the other rulings complained of. The judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.