Cook v. Greenberg

• Decision Date: 11 March 1896
• Citation: 34 S.W. 687
• Parties: COOK et al. v. GREENBERG.
• Court: Texas Court of Appeals

34 S.W. 687

COOK et al. v. GREENBERG.

Court of Civil Appeals of Texas.

March 11, 1896.

Appeal from district court, McLennan county; Sam R. Scott, Judge.

Action by Simon Greenberg against Dee Cook and others. Judgment for plaintiff. Defendants appeal. Reversed.

This suit was brought by Simon Greenberg, appellee, the 22d October, 1894, against Dee Cook, constable of precinct No. 1 of McLennan county, and the sureties on his official bond, Rogers, Anderson, and Shelton, against Frankfurt, Spero & Co., a firm composed of Elias Frankfurt, Joseph Spero, and Isaac Mitchell, instigating the constable in the act complained of by their indemnity bond to him and against Sam and Lehman Sanger, who, by bond, indemnified the constable. The suit grows out of a levy by the constable, Dee Cook, of an attachment sued out by Frankfurt, Spero & Co. for debt due by Elias Greenberg to them. The levy was made upon goods claimed by the plaintiff, Simon Greenberg. Pending the suit the goods were sold by order of the court, and the proceeds deposited with the clerk of the court. Attorneys for plaintiff who filed the suit compromised the claim of plaintiff for $200, and in vacation entered a dismissal of the cause before answer was filed; but plaintiff, denying the authority of his attorneys to settle the claim, employed other attorneys, who prosecuted the suit. Defendants set up the settlement and compromise as a defense. Defendant Cook set up the indemnity bond of Frankfurt, Spero & Co. as principals, with the Sangers as sureties, and asked for judgment over against them for the amount of the bond, $502, in case judgment should be rendered against him. The cause was tried on the 17th day of April, 1895, and verdict was returned for plaintiff, assessing his damages at $900, upon which judgment was rendered for plaintiff, Simon Greenberg, against Dee Cook and his official bondsmen and against Frankfurt, Spero & Co. for $900, and judgment over in favor of Cook against Frankfurt, Spero & Co., principals, and the Sangers as sureties on the indemnity, for $502, the amount of their liability on the indemnity bond. Defendants appealed.

S. P. Ross, Prendergast & Evans, and Baker & Campbell, for appellants. T. A. Blair and Henry & Stribling, for appellee.

COLLARD, J. (after stating the facts).

Defendants' position in the case was that the goods attached as the property of Elias Greenberg were in fact his property, and that he was legally indebted and insolvent. He had been doing business in Houston, Tex., and had failed. Plaintiff claimed that he bought the goods levied on, or some of them, from Belisch Bros., a firm in Waco, Tex., styled the Chicago Supply Company, and offered invoice or bill of sale to that effect, showing payment of about $100 in cash and the balance of about $2,000 in his notes to them. The testimony of one Klein, who was a member of the firm of the Chicago Supply Company, and bookkeeper, whose testimony the jury seem to have discredited, tended to show that Elias Greenberg, preparatory to suspending business in Houston, and preparatory to his failure in business (the same kind of a business as that of the Chicago Supply Company,—supplying peddlers, etc.), had shipped his goods out over the country in fictitious names, and shipped some of them to Belisch Bros., and that Elias had told him (the witness Klein) that he intended to ship all the goods so sent out to Belisch Bros. in Waco, so that his creditors could not get them; and that goods came to Belisch Bros. from this source. His testimony also tends to show that the invoice of the goods in the bill of sale to plaintiff by the Chicago Supply Company did not represent a real transaction, but that Simon Greenberg had separated his goods from those of the supply company, and moved them out; and that the bill of sale was made out to his brother, the plaintiff, to protect them from his (Simon's) creditors. Plaintiff made proof that the purchase from Belisch Bros. was a real bona fide transaction, that he owned the goods, and that Elias Greenberg had no interest in them. Simon Greenberg, being on the stand, was asked by defendants' counsel: "Is it not a fact that at the time your brother, Elias Greenberg, left Houston, he shipped his goods all over the country to various and sundry persons who did not exist,—fictitious persons?"—defendants expecting to show that such was the fact, and that plaintiff knew it. The court sustained plaintiff's objection to the testimony, defendants reserving a bill of exceptions. Defendants offered certain bills of lading for goods shipped by Elias Greenberg to different persons, the attorneys stating that they were made out at the time Elias Greenberg quit business in Houston, and that it was their purpose to show that Elias Greenberg shipped his goods all over the country in various directions, and quit business. Simon Greenberg, being on the stand as a witness in his own behalf, was asked as to one of the bills, "Did you, at the time you made this bill of lading out, make out one for Belisch?" The court sustained plaintiff's objection to the question, defendants excepting. The court qualified the bill of exceptions showing the above, as follows: "That the goods in controversy were not identified or shown to be the same goods shipped in the bill of lading." The court's rulings in both instances are assigned as error, and we think the assignments should be sustained. It was for the jury to determine the question of identity of the goods. The testimony was a link in the chain by which defendants proposed to show that the goods levied on were the goods of Elias Greenberg. If, from all the testimony, the jury would not be justified in finding that the goods levied on were the property of Elias Greenberg, they should so find; but where the question is fraud or not, every circumstance tending to establish the issue is admissible. Plaintiff's knowledge and means of knowledge of the facts tending to establish the fraud were a pertinent inquiry. The issue of fraud on the part of Elias Greenberg and knowledge of it on the part of plaintiff could probably only be proved by circumstances; and testimony of any such circumstance, though slight, should have been admitted. Cox v. Trent, 1 Tex. Civ. App. 639, 20 S. W. 1118; Hunter v. Lanius, 82 Tex. 677, 18 S. W. 201; Day v. Stone, 59 Tex. 612.

2. It was not error to permit plaintiff to use as evidence bills for goods made by different parties to him, as tending to show that any part of the goods levied on were bought by him from such parties. The testimony was pertinent and proper. The bills would not, however, prove themselves. The mode of proof should have been by some one who knew the fact that the bills stated the truth, as by the parties who sold them, or any other person who could testify to the fact. The bills so established would not be hearsay.

3. The court should have required Millo Belisch to produce, in response to a subpœna duces tecum, the book of original entries of the transactions shown by the books if he was able to do so.

4. In making a statement to the jury in the introductory part of the court's charge the jury were told that the plaintiff replied, and denied that he ever in any way ratified or accepted the terms of the alleged compromise made by his attorneys which was set up as a defense by defendants. There was in fact no such reply and denial filed, and appellants contend that the court erred in the statement to the jury. The statute provides that "it shall not be necessary for plaintiff to deny any special matter of defense pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted." Sayles' Civ. St. art. 1197 (R....