Ellis v. Bonner

• Decision Date: 14 June 1894
• Citation: 27 S.W. 687
• Parties: ELLIS v. BONNER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

27 S.W. 687

ELLIS v. BONNER.¹

Court of Civil Appeals of Texas.

June 14, 1894.

Appeal from district court, Ft. Bend county; T. S. Reese, Judge.

Action by August Bonner against W. O. Ellis to recover the value of personal property. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Williams & Evans, for appellant. Oscar D. Kirkland and Jas. Slyfield, for appellee.

PLEASANTS, J.

On the 25th of September, 1889, the appellee sued the appellant, in the district court of Harris county, to recover the value of two certain portable frame houses, in a knockdown state, which had been levied upon by appellant under a writ of attachment issued by appellant in a suit in which he was plaintiff and the Houston Building Company was defendant, and under which levy the houses were sold, and the proceeds of the sale appropriated by the appellant. The appellee, in his petition, averred that the houses, at the time of their seizure and appropriation as aforesaid, were on his premises, and were complete in their parts, and ready to be erected upon the premises into two structures, and that the same, when so erected, were each worth $1,000. The petition further alleged the circumstances under which the property was seized and appropriated, and claimed that plaintiff was entitled to exemplary damages, for which prayer was made, and for the value of the property also. The defendant answered by general demurrer and general denial. Upon a trial of the cause a verdict and judgment were rendered for the plaintiff, and upon appeal to the supreme court the judgment was reversed, and the cause was remanded for another trial (15 S. W. 1045); and upon return of the cause to the district court of Harris county, upon motion of the defendant, Ellis, the venue was changed to Ft. Bend county. On the 29th of March, 1893, — the first day of the term of the district court of Ft. Bend county, — the cause was called for trial, and the plaintiff appeared in person and by counsel, and the defendant appeared by his counsel, F. M. O. Feen, Esq., by whom the court was informed that the defendant was unable, from physical infirmities, to be present; and by agreement the cause was postponed until a future day of the term, to wit, the 10th day of April. And on the 10th the plaintiff again appeared, and announced "Ready for trial;" but the defendant came not, and his counsel produced and read to the court the certificate of defendant's attending physician, to the effect that the defendant was prevented by his illness from attending the court on said day, and thereupon the cause was reset for the 15th inst. On the 15th, plaintiff was again in court, and ready for trial, and defendant not being able to appear, according to the certificate of his physician, by reason of personal injuries recently sustained, the cause was, upon defendant's application, continued until the next term; and at the time of the continuance, by agreement between the counsel for defendant and plaintiff, the cause was set down for trial on the 25th of September, 1893. Some two weeks before the 25th of September, 1893, the defendant called on the plaintiff's attorneys, at their offices, in the town of Richmond, and asked for and obtained an agreement with them to read upon trial of the cause the statement of facts which were agreed to upon appeal by the defendant from the judgment rendered against him by the district court of Harris county. This agreement was reduced to writing, and signed by the parties, and the defendant, at the time of this agreement, requested that the cause might be set for a later day of the term than the 25th of September; telling counsel for the plaintiff that his health was, and had been for some time, bad, and that he had been urged by his physician to leave the state for a few weeks, — change of atmosphere being necessary for his restoration to health, — and that his testimony was very material to his defense. To this request, plaintiff's counsel would not consent, and the defendant then informed them that the cause would not be tried in his absence, and that he had not yet determined fully whether he would permit a trial at the approaching term of the court. Counsel for plaintiff then inquired of defendant if the papers of the cause were in his possession, and they were informed by the defendant that the papers were in the possession of his counsel, the Honorable N. G. Kittrell, of the city of Houston. On Friday, the 22d of September, one of the counsel for the plaintiff visited the office of Judge Kittrell, in the city of Houston, and received from him the papers of the cause. During the interview between Judge Kittrell and counsel for plaintiff, in reply to a question from the latter, he was informed by Judge Kittrell that he would not be in attendance upon the Ft. Bend court before Tuesday, the 26th, — the second day of the term. Upon receiving this response to his question, plaintiff's counsel did not advise Judge Kittrell that the cause had been set for trial on the 25th, and the plaintiff would insist upon a trial on that day. Had this information been given to Kittrell, he would have been in court on the 25th, and would have represented the defendant in the cause. Counsel for the plaintiff left the office of Kittrell after receiving the papers in the cause, and after agreeing upon a day for the trial of another cause pending in the Ft. Bend court, in which himself and Kittrell were opposing counsel; and, when these counsel parted, Kittrell supposed that this cause would not be called for trial before Tuesday, the 26th of September. On Monday, the 25th of September, the cause was tried by the judge of the court without a jury, in the absence of both defendant and his counsel, and a judgment rendered for plaintiff for the sum of $1,638, with interest thereon from the day on which the houses were seized and converted to his use by defendant. The judgment was only for the value of the property, the claim of exemplary damages having been eliminated from the suit by the decision of the supreme court. Previous to the trial of the cause, either on the day of the trial or the day before, the judge was advised by certificate of his physician that defendant would be unable to attend court on the 25th, by reason of his ill health; but plaintiff was present with his witnesses, and demanded a trial. The plaintiff proved the purchase by him from the Houston Building Company of the two houses some days before their seizure by the defendant. The purchase was made by the managing member of the defendant company, and by him the two houses, complete in all their parts, with a few slight exceptions, and ready to be erected, were delivered to the plaintiff; the price being $1,638, $1,038 of which were paid down upon delivery of the material, and the balance of the price was to be paid when the houses were erected, which the company, at the time of the sale of the material, agreed with the plaintiff to do within a short time. The houses had been delivered to plaintiff, and were on his lots, when attached by the defendant. The managing partner of the Houston Building Company, who made the sale to the plaintiff, was alone authorized to make purchases and sales of the company. The secretary of the company, who had, a day or two before the sale to plaintiff, transferred the entire assets of the company to certain parties in the city of Houston, was not authorized to make the transfer; and Boyd, the managing partner, was not advised of this transfer at the time he sold the houses to plaintiff. The $1,038 received by him in part payment for the houses were duly placed to the credit of the company. The value of the houses, when erected, was $1,000 each. The cost of putting them up and the cost of missing material was about $200. The sale of the houses was made to the plaintiff at about 25 per cent. less than their value; the consideration for this reduction of the price being, as...