Cleveland v. San Antonio Building & Loan Ass'n

• Decision Date: 05 October 1949
• Docket Number: No. A-2153.,A-2153.
• Citation: 223 S.W.2d 226
• Parties: CLEVELAND v. SAN ANTONIO BUILDING & LOAN ASS'N et al.
• Court: Texas Supreme Court

223 S.W.2d 226

CLEVELAND v. SAN ANTONIO BUILDING & LOAN ASS'N et al.

No. A-2153.

Supreme Court of Texas.

October 5, 1949.

Harry B. Berry, G. Woodson Morris, San Antonio, for petitioner.

Charles J. Lieck, Walter C. Wolff, San Antonio, for respondents.

SMEDLEY, Justice.

The trial court sustained the motion of respondent Bertha Otterstetter, defendant in the principal suit, to quash a writ of garnishment issued on the application of petitioner Exie M. Cleveland, plaintiff in that suit, against respondent San Antonio Building and Loan Association as garnishee. The Court of Civil Appeals affirmed the judgment. 223 S.W.2d 224.

As stated in the opinion of the Court of Civil Appeals, only two questions are presented for decision: The first, whether the cause of action as set out in petitioner's pleadings is one that will support the issuance of a writ of garnishment; the second, whether respondent Bertha Otterstetter, the defendant in the principal suit, may question the validity of the writ of garnishment without first filing a replevy bond.

The trial court in quashing the writ of garnishment sustained the contention made by respondent that the pleadings of Exie M. Cleveland as plaintiff in the principal suit allege an action in tort for fraud and deceit and not a liquidated demand for debt, and that the issuance of the writ of garnishment was unauthorized. To determine the nature of the cause of action alleged in the principal suit we may look both to the original petition, which was on file when the writ of garnishment was issued, and to the fourth amended original petition, which was on file when the motion to quash was heard and acted upon. Kildare Lumber Company v. Atlanta Bank, 91 Tex. 95, 101, 41 S.W. 64; Tarkinton v. Broussard, 51 Tex. 550.

According to Subdivision 2 of Article 4076 of the Revised Civil Statutes of 1925, the writ of garnishment may be issued "where the plaintiff sues for a debt" and makes the affidavit required to be made by that subdivision. Does the petitioner in this case sue for a debt within the meaning of the statute?

The substance of the allegations of the plaintiff's original petition is as follows: The defendant Bertha Otterstetter, in March, 1946, by fraud and deceit induced the plaintiff to pay her $2,000 in cash as consideration for the purchase of the business and contents of a rooming and boarding house in the City of San Antonio rented by the defendant from the owner of the premises. The defendant, although fully informed at the time the purchase was made by the plaintiff that the owner of the premises had applied to the San Antonio office of the "OPA Rent Control" for a certificate of eviction to effect major improvements on the premises, and that because of the application the business could not be operated in the premises after June 4, 1946, concealed those facts from the plaintiff, represented to her that the right to occupy the premises would not be terminated in the foreseeable future, and by misrepresentation induced the plaintiff not to make investigation. The order was made by the rent control authority and the right to occupy the premises was terminated on June 4, 1946. Because of the scarcity of housing facilities in San Antonio, the plaintiff was not able to obtain other property in which to operate a rooming and boarding house business, and the equipment, the contents of the house, was of no value whatever with no opportunity to use it in other premises, whereby she was damaged in the sum of $2,000. She further alleges that by reason of the fraud and deceit the transaction should be rescinded, that she stands ready to return the personal property that she received from the defendant, and is entitled to the return of the $2,000 which she paid.

The plaintiff's fourth amended petition makes in greater detail substantially the same allegations of fact as those contained in the original petition. It alleges further that the defendant left San Antonio to be gone for an indefinite period of time, and that because the plaintiff did not know where the defendant could be found until about two or three days before this suit was brought, she could not give the defendant notice of rescission except by suit. She asks for rescission and recovery of the $2,000 paid, offering to return the property that she received from the defendant. In the alternative she sues for damages.

The statute authorizing the issuance of the writ of garnishment and that relating to the issuance of the writ of attachment, Article 275, have not been construed as authorizing the writs to be issued only when the plaintiff's suit is technically an action for debt. Neither of the writs may be issued when the suit is for damages for tort, but they may be issued when the plaintiff's claim arises out of contract either express or implied, and the demand is liquidated, that is, the amount of the claim is not contingent, is capable of being definitely ascertained by the usual means of evidence, and does not rest in the discretion of the jury. Wise & Jackson v. Nott, Tex.Civ.App., 283 S.W. 1110; Stewart v. Forrest, Tex.Civ.App., 124 S.W.2d 887; Hochstadler v. Sam, 73 Tex. 315, 11 S.W. 408; Gray v. Merritt, Tex.Com.App., 276 S.W. 187; Kildare Lumber Co. v. Atlanta Bank, 91 Tex. 95, 41 S.W. 64; Stiff v. Fisher, 2 Tex.Civ.App. 346, 21 S.W. 291; Hall v. Parry, 55 Tex.Civ.App. 40, 118 S.W. 561. Several of the cases above cited relate to attachment, but the rule announced by them applies as well to garnishment cases, as Article 275 authorizes the issuance of the writ of attachment upon the plaintiff's making affidavit stating "that the defendant is justly indebted to the plaintiff, and the amount of the demand." A suit for damages for breach of contract is not a common law action of debt, but the writ of attachment may issue in such a suit provided the demand is a liquidated demand as above explained. Hochstadler v. Sam, 73 Tex. 315, 11 S.W. 408; Gray v. Merritt, Tex.Com.App., 276 S.W. 187.

The instant suit is not, except incidentally or in the alternative, an action in tort for damages suffered on account of the fraud and deceit alleged. The action arises out of the contract between the plaintiff and the defendant, and is primarily for the recovery of a definite sum, that is, the $2,000 which the plaintiff paid to the defendant. In substance and effect the plaintiff waives the tort and brings an action in assumpsit for money had and received by the defendant, being an action upon a promise implied in law, a fictitious promise and obligation arising from the application of equitable principles to the circumstances. The gist of the plaintiff's suit is that through fraud and deceit the defendant procured from her and retains $2,000, for which the plaintiff received nothing but certain personal property which in the circumstances and because of the fraud is of no value, that she has rescinded the contract of purchase in so far as was possible in view of the defendant's absence, offers to return the personal property, and is...