Cohen v. Oliver

• Court: Texas Court of Appeals
• Writing for the Court: Lightfoot
• Citation: Cohen v. Oliver, 29 S.W. 81, 9 Tex. Civ. App. 38 (Tex. App. 1894)
• Decision Date: 28 November 1894
• Parties: COHEN v. OLIVER.

29 S.W. 81

COHEN v. OLIVER.

Court of Civil Appeals of Texas.

November 28, 1894.

Appeal from Limestone county court; W. G. Rucker, Judge.

Trial of right of property between M. Cohen, plaintiff, and R. Oliver, claimant. Judgment for claimant, and plaintiff appeals. Affirmed.

Cobb & Jackson, for appellant. Farrar, Kincaid & Williams, for appellee.

LIGHTFOOT, C. J.

On December 24, 1891, and for some time prior thereto, H. Reicher was running a grocery store in the town of Groesbeck, Tex., as agent of I. Reicher, who lived in New York; his appointment being by a written power of attorney duly recorded in Limestone county, Tex. On December 24, 1891, I. Reicher, by his attorney in fact, made a deed of trust securing certain creditors named therein, appointing R. Oliver trustee. On December 25, 1891, M. Cohen, being a creditor of I. Reicher, sued out a writ of attachment, and had same levied by the sheriff of Limestone county on part of the goods in the hands of the trustee, who on December 29, 1891, filed his claimant's oath and bond. On December 13, 1892, this cause for the trial of the right of property was heard, resulting in a judgment for claimant, R. Oliver, from which judgment M. Cohen has taken this appeal.

Appellant's first assignment of error is that the court erred in permitting appellee to read in evidence the trust deed purporting to have been executed by H. Reicher as agent and attorney in fact for I. Reicher, for the following reasons: (1) Because there was no proof of its execution; (2) because the power of attorney from I. Reicher to H. Reicher does not authorize such trust deed. We do not think this assignment of error is well taken: (1) While the proof of the execution of the instrument was not clear and positive, yet we think it was sufficiently proved to authorize its admission in evidence. It was shown by the testimony of I. Reicher that he authorized his brother H. Reicher to execute such a deed of trust about December 10 to 15, 1891. Defendant, Oliver, testified that, at the time said deed of trust was executed, he was doing a banking business in the town of Groesbeck, and was cashier of the Groesbeck National Bank; that H. Reicher remained in Limestone county for several days after the deed of trust was executed, and then left, and has not since returned; that said H. Reicher left Groesbeck the evening after the deed of trust was executed, and went to Mexia, about 12 miles away, and returned on the next train; that the property covered by the deed of trust to him was not worth enough to pay the debts secured; that he realized about $800 out of same. Said Oliver testified, further, that he took possession of the property conveyed by the deed of trust as soon as the same was executed, and that he was in possession of the property when the sheriff levied the writ of attachment. The debts of the Groesbeck National Bank and D. & R. Oliver were proved. (2) The authority to execute the instrument was sufficiently shown by the testimony of I. Reicher. See Sayles' Civ. St. Tex. art. 3190b, §§ 2, 4, 7; McKee v. Coffin, 66 Tex. 307, 1 S. W. 276; Gouldy v. Metcalf, 75 Tex. 455, 12 S. W. 830; Story, Ag. § 47.

2. The second assignment of error is as follows: "The court erred in permitting defendant [appellee] to read in evidence the depositions of I. Reicher, for the following reasons: (1) Because the interrogatories and answers were too general and indefinite, and did not identify the instrument authorized by I. Reicher, nor the one about which he was testifying; (2) because the question of ratification was one of law, about which the witness could not give his opinion; (3) because said depositions sought to show a verbal authority inconsistent with the written authority; (4) because it was not shown that the witness knew the contents of the trust deed at the time he was testifying, and could not, therefore, ratify the same; (5) because, if the power sought to be shown by the depositions was verbal, it could not be shown, as against the rights of appellant." This assignment is too general, and does not comply with the rules. The assignment should be specific and clear, and should be confined to objections made to the testimony in the court below, and should be based upon a proper bill of exceptions contained in the record. While a portion of the depositions of I. Reicher may be open to exception, the general objections set out in the assignment are not well taken. It does clearly and definitely appear from such depositions that the witness had some time before furnished his brother H. Reicher about $1,400 to conduct a business for him, and constituted his brother his agent; that about December 10 or 15, 1891, witness found that the business would not pay out; and that he was insolvent, and authorized his ...