Clark v. Pearce
| Decision Date | 06 March 1891 |
| Citation | 15 S.W. 787 |
| Parties | CLARK <I>et al.</I> v. PEARCE. |
| Court | Texas Supreme Court |
Henry F. Fisher, for appellants. J. W. Walker and W. S. Oldham, for appellee.
This action was brought by appellee against appellants as partners to recover damages, actual and exemplary, for the alleged wrongful and malicious suing out of a writ of sequestration of certain property belonging to her. The case made by the plaintiff was as follows: The defendants were dealers in furniture, selling upon a credit payable in installments. The plaintiff purchased certain pieces of furniture of them upon a credit, and gave them a chattel mortgage to secure payment of the debt. There were several small purchases and several partial payments. However, she alleged in her petition and testified upon the trial that she paid her indebtedness. The defendant Loftus claimed that there was $11 still due, and, in order to enforce its payment, caused a suit to be brought by the firm against her for the amount, and sued out a writ of sequestration against certain furniture upon which they claimed a mortgage. Loftus went with the constable to make the levy, and, as alleged and testified, behaved in an insulting manner towards her. The writ having been levied, she paid the money under protest, in order to secure the release of her property. The defendants pleaded a general denial, and also answered specially that the debt sued for was justly due, and that the writ of sequestration was properly sued out. They also denied that the levy of the writ was attended with any insulting conduct or language. The defendant Loftus testified in the case, and swore to the correctness of the account upon which they had brought suit and sued out the sequestration, and that he used no insulting language towards the plaintiff at the time the writ was levied. There were other witnesses examined, and there was a very decided conflict in the testimony, both as to the payment of the debt for which the defendants sued the plaintiff, and as to the conduct of defendant Loftus at the time of the levy of the sequestration. It is first assigned that the court erred in giving the following charge: "If you believe from the evidence that the plaintiff had dealings with Clark & Loftus, and when she went to have a settlement with them Loftus obtained the receipts for money theretofore paid, and destroyed and retained them, and afterwards made a claim for the same articles which she had already paid for, and after that sued out a sequestration to get possession of the articles which had been paid for by plaintiff, then you will find for plaintiff such actual damages as she may have sustained therefrom, viz., the sum she paid to Lubbock, constable, and also such sum for punitory damages as in your deliberate judgment, from the evidence, the nature of the case may call for; and in estimating the punitory damages you will take into consideration all circumstances in evidence, if any, showing insults and outrages, as alleged in plaintiff's petition."
We do not think the grounds of objection to the charge are well taken. The measure of damages is correctly stated. It is true that ordinarily, when property has been wrongfully seized and converted, the damage is the value of the property; but when, as in this case, money has been paid to secure a release of the property, and it has been released, it is clear that the amount paid for the release is the measure of the damages. The charge is not upon the weight of the evidence, nor does it assume the existence of facts about which there is any dispute. It does assume that the plaintiff paid the constable money in order to obtain a release of the levy, but as to that fact there was no dispute whatever. The plaintiff claimed and testified that she paid her account in full, that Loftus got possession of her receipts, and then sued for a part of the account, and sequestered the furniture for which she had paid. If this was the case, and if it was deliberately done, it entitled the plaintiff to exemplary damages, and it was not error to so instruct the jury. Mayer v. Duke, 72 Tex. 445, 10 S. W. Rep. 565. The defendants did not claim, nor was there any evidence to show, that there was any mistake as to the alleged debt. The issue was sharply made, upon the one hand, that the debt had been paid, and upon the other that it had not. If the debt had been paid, there was no evidence to indicate that the defendants were not fully cognizant of the fact, or that the sequestration was not deliberately sued out, with the knowledge that nothing was due them. It is also claimed that where money has been paid voluntarily it cannot be recovered back, and that, therefore, the charge is erroneous. But it is well settled that when goods have been wrongfully seized under the forms of the law, and money has been paid to secure their release, the payment is not voluntary,...
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