Fellman v. Smith

• Decision Date: 01 January 1857
• Citation: 20 Tex. 99
• Parties: LEOPOLD FELLMAN v. HIRAM S. SMITH.
• Court: Texas Supreme Court

20 Tex. 99

LEOPOLD FELLMAN

v.HIRAM S. SMITH.

Supreme Court of Texas.

1857.

Where a person delivers personal property to another, his declarations made at the time are admissible to prove the character of the delivery, in a controversy between other parties respecting the title.

Error from Travis. Tried below before the Hon. Thomas H. DuVal.

The facts are stated in the opinion. The invoice referred to purported to be an invoice of property sold by H. S. Smith to S. W. Johnson on the 27th of August, 1855, at Gonzales. It included merchandise and four horses, harness, wagon, etc., amounting in all to $1,390.30.

T. E. Sneed, for plaintiff in error.

Chandler & Turner, for defendant in error.

ROBERTS, J.

This is an action brought by H. S. Smith against Walker & Fellman, to recover damages for the taking of a wagon and harness by Walker, as a constable, by virtue of an execution in favor of Fellman against S. W. Johnson. The question on the trial was, whether the property belonged to Johnson or H. S. Smith. The property having been seized, while in the possession of Johnson, the burthen of proof rested on Smith. Smith proved by a witness, that he bought the property from his brother, R. R. Smith, and that some time in the year 1855, but at what time of the year does not appear with any certainty, H. S. Smith let Johnson have the property under a bargain of sale, which was not to be consummated until Johnson paid for it. It may be presumed, from what was stated, that this took place about 27th of August, 1855. This was at Gonzales. On the other side, it was shown by witness S. W. Keithly, among other things, that R. R. Smith brought the wagon and harness and horses also to Austin, and there had them in possession at Walshe's stable; that after some conversation between R. R. Smith and Johnson about a trade in relation to them, the property, to wit: the wagon, horses, etc., were carried to Johnson's stable, and that afterwards Johnson sold some of the horses, as his own, that were brought to his stable with the wagon. This witness did not hear the trade. The defendants below, Fellman and Walker, then “offered to prove by the witness Samuel W. Keithly, that at the time he saw R. R. Smith deliver the peddler's wagon in controversy to S. W. Johnson, to wit: in August or September, 1855, witness Keithly heard the said R. R. Smith say that he had sold said peddler's wagon to S. W. Johnson and also the harness for four horses, and that S. W....