Felker v. Douglass

• Citation: 57 S.W. 323
• Parties: FELKER v. DOUGLASS.
• Decision Date: 28 April 1900
• Court: Texas Court of Appeals

57 S.W. 323

FELKER v. DOUGLASS.

Court of Civil Appeals of Texas.

April 28, 1900.

Appeal from Lamar county court; William Hodges, Judge.

Action by W. R. Douglass against W. R. Felker. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Moore, Park & Birmingham, for appellant. T. S. Hill, for appellee.

RAINEY, C. J.

Appellee, Douglass, plaintiff below, instituted this suit against W. R. Felker, appellant, in the county court of Lamar county, to recover, first, the value of certain cross-ties, which, it is alleged, were cut on defendant's land without the consent of appellee by the agent of appellant, and same hauled off by said agent, and appropriated to the use of appellant. The second count alleges that appellee, at the special instance and request of defendant, sold and delivered to defendant certain goods and merchandise, for which defendant promised to pay, on demand, etc. It was further alleged that defendant was a nonresident of this state, and appellee procured the issuance of a writ of attachment for the aggregate amount of his claim, which was levied on certain lands belonging to defendant. A motion to quash said writ of attachment was overruled. The defendant thereafter answered. The cause was tried before a jury, and verdict returned in favor of the plaintiff, from which this appeal is prosecuted.

The appellant complains that the court erred in overruling the motion to quash the writ of attachment, on the ground that the claim of plaintiff was for the wrongful conversion of ties, sounding in tort, upon which an attachment would not lie. The general rule is that a writ of attachment will not issue in an action for damages where the claim is unliquidated and uncertain. This rule does not apply where there is a wrongful conversion of property, where its value can be fairly approximated. The claim of plaintiff in this case was for certain crossties wrongfully taken, the number and value being definitely stated in the petition. Under such circumstances, there is an implied promise to pay the value of the property when taken, and the demand is of such certainty as to form a basis for the issuance of the writ. Bank v. Fuchs (Tex. Sup.) 34 S. W. 207; Stiff v. Fisher (Tex. Civ. App.) 21 S. W. 292; Gould v. Baker (Tex. Civ. App.) 35 S. W. 708. We are of the opinion that, as the appellee sued only for the value of the property taken, there being no exemplary damages claimed, the court did not err in overruling the motion to quash the writ of attachment.

The appellant complains of the action of the court as shown by the following bill of exception: "Be it remembered that on the trial of the above-entitled cause the following proceedings were had, to wit: After the jury had retired to consider of their verdict, one of their number returned, and asked for the written contract between W. R. Felker and A. R. Haynes, which had been introduced in evidence by defendant, and also the written orders sent by said Haynes to the plaintiff, and which had also been introduced in evidence by the defendant. Thereupon the court permitted the said contract and written orders to be taken by the jury to their room, and retained during their deliberations. The next morning, upon the court convening (the jury having failed to agree upon a verdict), and before the jury again retired to consider of their verdict, and in the absence of defendant's counsel, and without any request from the jury for any additional instructions, the following additional and special charge was, at the instance of and request of plainti...