Purnell v. Gandy

| Tex. | Jul 1, 1876

Gould, Associate Justice.

Appellees, B. F. Gandy & Son, brought this suit against Thomas F. Purnell, United States marshal, Clifton Witherspoon, Ms deputy, and sundry other parties, claiming damages for an- alleged trespass, in forcibly entering their storehouse, by breaking the locks and hinges of the door, and seizing and converting to their own use a stock of groceries and goods, alleged to be the property of the plaintiffs, and of the value of $4,896.81. They asked a judgment for damages, including the value of the goods seized, injuries to the door, disturbance in the possession of their storehouse, and the interruption and breaking up of their business as merchants; and in an amended petition they also claimed damages, on the ground that the trespass was committed maliciously, and with intent to injure the plaintiffs.

In the answer, it was alleged that the goods seized were in fact the property of one Samuel F. Spencer, against whom proceedings had been commenced by some of the defendants, to force him into involuntary bankruptcy, and that the goods were seized by virtue of a writ of seizure issued by the United States District Court for the western district of Texas, commanding the marshal to take possession of all the estate of said Samuel F. Spencer, both real and personal. It was alleged that the storehouse was entered lawfully, without damage thereto, and with the use of only such force as was necessary and lawful in the execution of the writ of seizure ; and that the goods were held by the marshal for the benefit of the assignee in bankruptcy of said Samuel F. Spencer’s estate, he having been, in November following the seizure, adjudicated a bankrupt. The answer charged that shortly before the seizure, and in the same month, Samuel F. Spencer, with intent to defraud Ms creditors, transferred the goods seized, being his entire stock, to his brother, L. M. Spencer, who, it is alleged, was a participant in the fraud, and who, in the same month, made, without consideration, a pretended transfer thereof to plaintiffs, who are also charged with notice and knowledge of all the facts alleged. It was further alleged that the transfer by Samuel F. to L. M. Spencer was made in payment of an alleged debt, in which the said L. M. Spencer, by the procurement of his brother, had sued out a writ of attachment, and caused the same to be levied on said goods; that said payment was made within four months before tire commencement of proceedings to put his estate into bankruptcy; was made when he was insolvent and in contemplation of bankruptcy, and that L. M. Spencer received the same, knowing that Samuel F. was insolvent and in contemplation of bankruptcy; that said payment or conveyance was in fraud of the bankrupt law, and null and void, and that Gandy & Son bought with notice and knowledge of all the facts.

This is a sufficient statement of the pleadings to show that, under the pleadings of both parties, the property in the goods was a material issue. Without entering into the details of thfe evidence, it is sufficient to say that there was evidence tending to establish that-the transfer between the Spencers was void under the provisions of the bankrupt act, as alleged in the answer, and tending to establish that Gandy & Son had notice of that fact.

Under this state of the pleadings and evidence, it was certainly the duty of the court, at all events where requested to do so, to have instructed the jury as to the effect of the bankrupt act on the transaction between the Spencers. A charge substantially in the terms of the 35th section of that act was asked, but was refused. The charge, as given, contains no direct reference to the bankrupt law, and gave the jury no information as to what facts would, under that law, make the payment or conveyance by Samuel F. to L. M. Spencer fraudulent and void. The jury are told that “ any conveyance out of the usual and ordinary comve of business is prima fade evidence of fraud; but such conveyance will admit of explanation. A preference given to creditors by a debtor, unless such preference perpetrated a wrong and injury on some person, is not fraud as contemplated by law, but such preference is to be closely scrutinized, in order to ascertain whether or not such transaction is free from fraud.” As this charge was not accompanied by any farther information as to what sort of a preference was wrongful under the bankrupt law, it is evident that the jury may have passed on the validity of the conveyance between the Spencers, as if it depended solely on the existence of such actual fraud as would suffice to defeat it, without reference to the bankrupt act. It is equally evident that the jury may not have passed on the question of whether Gandy & Son bought the goods with notice of facts, which would defeat their title, because that question depended on the other which preceded it. Various instructions on the subject of notice, which were appropriate under the bankrupt act, were asked and refused.

Because the court refused instructions necessary to the proper determination of the issue of property, and because the verdict for damages may have been based on the conclusion of the jury, that the property in the goods was in Gandy & Son, the judgment must be reversed.

In reversing the judgment on this ground, no opinion is intimated as to whether the writ of seizure justified an entry into the storehouse of Gandy & Son, by breaking the door, nor yet, upon the further question as to whether, in the event the goods were seized after an illegal entry, the property in the goods could still be shown in mitigation of damages.

The first assignment of error relates to questions which will probably again recur on another trial, and should be noticed.

Objections were made to interrogatories, on the ground that they were leading, and on the ground that the answers were conclusions of law; and the court refused to entertain them, because they were not taken in writing before the commencement of the trial. Such objections to interroga^ tories and answers are not of the class which go only to the form and manner of taking the depositions, and are not therefore required to be made in writing and before the trial.

The witness Duke was asked to “ state whether or not the transfer of said goods was a fair and just transaction in payment of said debt,” and answered: “ The transfer was fair and just, to the best of my knowledge and belief.” We think that this question and answer were alike objectionable, as calling for, and eliciting the conclusion of the witness as to a matter of opinion or of law, and not as to any distinct fact.

The judgment is reversed and the cause remanded.

Eeversed and remanded.