Fairbanks v. Simpson

• Decision Date: 24 October 1894
• Citation: 28 S.W. 128
• Parties: FAIRBANKS v. SIMPSON et al.
• Court: Texas Court of Appeals

Page 128

28 S.W. 128

FAIRBANKS v. SIMPSON et al.

Court of Civil Appeals of Texas.

October 24, 1894.

Appeal from district court, Grayson county; T. J. Brown, Judge.

Action by J. Fairbanks against J. B. Simpson and others for conversion. Judgment was rendered for defendants, and plaintiff appeals. Reversed.

J. Fairbanks brought this suit against appellees in the district court of Grayson county for the value of certain merchandise, consisting of watches, jewelry, etc., which appellant alleged had been seized by R. L. May, sheriff of Grayson county, by virtue of an execution issued out of the district court of Parker county on a judgment rendered by the district court of Parker county on May 24, 1888, in favor of R. B. Milliken against J. P. Doherty and others, and which had been sold by the said sheriff under said execution to J. B. Simpson. R. L. May, the sheriff, had been killed prior to the filing of the suit. His surviving wife, Carrie May (who intermarried during the pendency of the suit with H. M. Spencer), his children (all minors), their guardian, Rich, the sureties of the said May on his sheriff's bond, J. B. Simpson, and the Scottish-American Mortgage Company, Limited, were all made defendants. It was alleged by the plaintiff that he was the owner of the said merchandise, and that J. B. Simpson, in directing the seizure to be made by the sheriff, and in purchasing the goods at the sheriff's sale, acted as the agent of the Scottish-American Mortgage Company, Limited, and for its benefit. Plaintiff also alleged in the alternative that the said Simpson acted for himself in the premises. Plaintiff further alleged that the said sheriff and the said Simpson well knew at the time the said merchandise was seized that it belonged to plaintiff, and prayed for the actual damages in the sum of $6,000, and $5,000 as exemplary damages. The defendants all pleaded a general denial, and all except the Scottish-American Mortgage Company, Limited, pleaded that the merchandise was really the property of J. P. Doherty, in whose possession it was at the time of the seizure; and that, if it had ever been conveyed by him to any one, the conveyance was made in fraud of the said Doherty, in which fraud J. C. Wilber, plaintiff's vendor, participated. They further alleged that plaintiff had paid no consideration for the goods, etc. The surviving wife of the said May and her husband, the children of the said May and their guardian, and the sureties of the sheriff pleaded over against their codefendants, Simpson and the Scottish-American Mortgage Company, for indemnity. The Scottish-American Mortgage Company pleaded specially that Simpson was not its agent in the premises; denied that it owned or controlled the judgment; and that if the said Simpson had ever purchased or acquired the judgment for it, or that if he had ever bought the goods for it, he did so without any authority from it. It further pleaded that, if the goods had ever been purchased for it, the purchase was ultra vires, etc. This pleading of the Scottish-American Mortgage Company was both against the plaintiff and its codefendants. Said mortgage company also pleaded the two-years statute of limitation. The trial, on November 18, 1892, resulted in a verdict and judgment for the defendants, from which the plaintiff has perfected this appeal.

E. J. Smith, E. F. Brown, and Don A. Bliss, for appellant. Dillard & Muse, for appellees other than J. B. Simpson and Scottish-American Mortg. Co., Limited.

RAINEY, J. (after stating the facts).

The first assignment of error complains of the ruling of the court in excluding from the consideration of the jury the original contract and supplement thereto, executed by C. M. Wilber, per J. C. Wilber, and J. P. Doherty, purporting to be a contract of consignment of the goods levied on and sold by the sheriff. The original contract was in writing, and is as follows: "The contract of consignment of merchandise made by C. M. Wilber, of New York, to J. P. Doherty, of Denison, Texas, witnesseth: 1st. Said C. M. Wilber hereby consigns and delivers to J. P. Doherty the entire stock of jewelry, watches, clocks, silverware, and merchandise now in stock at Denison, Texas, and being the stock of merchandise formerly owned and held by said C. M. Wilber in Dallas, Texas, as shown by invoice book and schedule, all valued at about...