Barker v. Abbott

• Decision Date: 24 January 1893
• Citation: 21 S.W. 72
• Parties: BARKER v. ABBOTT et al.
• Court: Texas Court of Appeals

21 S.W. 72

BARKER v. ABBOTT et al.

Court of Civil Appeals of Texas.

January 24, 1893.

Appeal from district court, Wilbarger county; Frank Willis, Judge.

Action by W. N. Barker against Abbott & Kellar, aided by attachment. Defendant Abbott reconvened, alleging the attachment to be wrongful, and from a judgment in his favor, plaintiff appeals. Reversed.

McCall & Britt Bros., for appellant. Stephens & Huff and Elliott & Sitterly, for appellee.

HEAD, J.

Abbott & Kellar were partners engaged in business as merchants in the town of Mangum, Greer county, Tex. One W. N. Barker attached their entire stock of goods, and also their storehouse and lots upon which it was situated. The defendant Abbott reconvened, alleging that the attachment was wrongfully issued, and that his partner, Kellar, refused to join in his plea of reconvention, and asked that he be made a party thereto. It seems that Kellar was made a party to the suit. The trial resulted in a verdict and judgment in favor of appellee, for the benefit of the firm, for the full value of the stock of goods, house, and lot, as claimed by him. The court below instructed the jury that the measure of damages appellee would be entitled to recover in case they found for him would be the reasonable market value of the property levied upon and seized under the writ of attachment at the time and place of such seizure, with interest from the date of the levy; and also, at the request of appellee, the jury were instructed that this measure of damages would be "such an amount as the goods and house and lots were reasonably worth on the market at the date they were attached, together with interest thereon at the rate of 8 per cent. from the date of such levy." The giving of this charge, we think, will necessitate a reversal of the judgment. That the value of real estate is not the measure of the damage for levying an attachment thereon seems to be conceded, but appellee attempts to sustain this charge upon the theory that the land referred to was in Greer county, and that the court judicially knows that no one has title to land in that county, and that, therefore, the house was personal property; but we think this would be no answer, even if it be conceded that the court did have such judicial knowledge. It will be noted that the jury were instructed to find the value of the house and lots, not the value of the house alone, disconnected from the lots; and the evidence upon which the finding of the jury was based included the value of the lots. Appellee, Abbott, testified that "the house bought of plaintiff was worth about $100 at Vernon, and after they rebuilt it at Mangum it and the lots were worth about $600." If it be conceded that the lots were not the property of appellee, it will certainly not be contended that his right to recover their value is better than if he owned them.

Appellant contends that appellee should not be allowed to maintain his plea in reconvention, because it appears therefrom that Kellar, one of the partners, refused to join therein; and also because it is claimed the attachment was with the consent of such partner. As a general rule, it must be conceded that all of the partners should join to recover for the conversion of partnership property, (Kirbs v. Provine, 78 Tex. 353, 14 S....