LeGierse & Co. v. Kellum

66 Tex. 242 | Tex. | 1886

Robertson, Associate Justice.

It is not necessary in this case to consider the assignments of error. The judgment rendered is the only one that could have been rendered upon plaintiffs’ pleadings, including the trial amendment. There was no allegation that the defendants had fraudulently misrepresented the character or circumstances of Stewart in the letters of credit. Bor Vas there any claim that the title to the goods sold by plaintiffs to Stewart did not pass from any cause. The plaintiffs asserted no sort of lien on the goods .sold by Stewart to defendants. The suit is not to have that sale dedared fraudulent as a means of discovering the property and subjecting it to levy, nor of tracing the proceeds into other property, the title to which, by extending the result of the invalidity of the original purchase by defendants, could, by construction as to creditors, be considered in Stewart and subject to his debts.

On the contrary, the object of the suit was to obtain a personal judgment against defendants on the ground that they had conspired with Stewart to defraud the plaintiffs, and, in the perpetration of this immoral scheme, had received and concealed property which would otherwise be subject to the plaintiffs’ process, and that, by these means, the-plaintiffs had lost their debt.

If the sale was fraudulent it was void as to creditors. As to creditors, the defendants have secreted, converted or disposed of Stewart’s-property. How has this, in legal contemplation, injured the plaintiffs? Suppose defendants had shot a horse belonging to Stewart, and subject to his debts, his creditors could not sue for damages. The plaintiffs-had no right in or lien upon the property they allege the defendants have meddled with. The damage they sustain is in being deprived of an opportunity to make a levy. This damage is too remote; they suffer. the loss, not of a right, but of the chance to secure a right. The wrong' done them is analogized by Judge Campbell to that done a legatee in a will by one who maliciously persuades the testator to withdraw the bequest. The principle is fully illustrated and established in reported cases. Adler v. Lenton, 24 How., 407; Lamb v. Stone, 11 Pick., 527; Wellington v. Small, 3 Cush., 146; Smith v. Blake, 1 Day, 258; Green v. Kimble, 6 Black., 552; Wait on Fraud. Conv., sec. 62.

The judgment is affirmed.

A T?]?TR,MT<iTV

[Opinion delivered May 14, 1886.]