Gossett v. Jones

• Decision Date: 05 January 1939
• Docket Number: No. 10660.,10660.
• Citation: 123 S.W.2d 724
• Parties: GOSSETT et al. v. JONES.
• Court: Texas Court of Appeals

123 S.W.2d 724

GOSSETT et al. v. JONES.

No. 10660.

Court of Civil Appeals of Texas. Galveston.

January 5, 1939.

Appeal from District Court, Houston County; Sam H. Holland, Judge.

Action by Charles C. Jones against A. W. Gossett and others for damages growing out of levy of attachment on a stock of merchandise. From a judgment for the plaintiff, defendants appeal.

Reversed and remanded.

Kennedy & Granberry, of Crockett, for appellants.

Aldrich & Crook, of Crockett, for appellee.

MONTEITH, Chief Justice.

This is an appeal from the district court of Houston County in an action brought by appellee, Charles C. Jones, for damages growing out of the levy of a writ of attachment on a stock of merchandise in a suit in which appellant, A. W. Gossett, was plaintiff and appellee was defendant.

The cause was submitted to a jury on special issues and judgment was rendered in response thereto against appellant, A. W. Gossett, and the sureties on his attachment bond, J. L. Hazlett and W. E. Keeland.

Appellee alleged a conspiracy by appellants to injure his business and that said writ had been issued maliciously and without probable cause. He sued for both actual and exemplary damages.

Appellants answered by numerous special demurrers and exceptions and by general denial.

The jury in answer to special issues found that the writ of attachment in question was caused to be issued by appellants without probable cause, and that appellee sustained actual damages as a result of the issuance (italics ours) in the sum of $1,267.61. No issue on exemplary damages was submitted and the jury were instructed that they must not consider testimony in reference to appellee's attorney's fees, or damages to his feelings, reputation or credit. The court refused to instruct the jury that no damages could be allowed for the loss of future profits in appellee's business.

The measure of damages for the wrongful attachment of merchandise is the value of the goods in bulk, or in convenient lots at the place at which they were seized on the day of the conversion, with interest on that value, and not the value they would bring if sold at retail, nor the value a purchaser would pay if compelled to take the entire stock together. Wallace v. Finberg, 46 Tex. 35; Blum v. Merchant, 58 Tex. 400; Tucker v. Hamlin, 60 Tex. 171; Miller v. Jannett, 63 Tex. 82; Heidenheimer v. Schlett, 63 Tex. 394; Schoolher v. Hutchins, 66 Tex. 324, 1 S.W. 266; Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 787; 5 Tex.Jur., page 335, sec. 176.

The only testimony in the record in reference to the value of the various articles constituting the stock of merchandise in question is that of appellee. While he testified that the value placed by him on said stock of merchandise was its market value, his testimony unquestionably discloses that he was testifying as to the retail market value of said merchandise. The admission of this testimony under the above authorities was error.

Appellants assign error in the action of the court in refusing to instruct the jury that they should not consider, for any purpose, the loss of profits in appellee's business. While the testimony of appellee in reference to his loss of profits was admissible under his allegations of conspiracy and his prayer for exemplary damages, the court, having determined not to submit an issue on exemplary damages, should have instructed the jury that they should not consider, for any purpose, appellee's testimony in reference to his loss of profits. Miller v. Jannett, 63 Tex. 82; Kirbs v. Provine, 78 Tex. 353, 14 S.W. 849; Kaufman & Runge v. Armstrong, 74 Tex. 65, 11 S.W. 1048.

In an action for wrongful attachment it is necessary that the grounds stated in the affidavit for attachment be actually shown not to exist before a party can be held liable for wrongfully suing out said writ. 5 Tex.Jur., page 273, sec. 213; Chism v. C. W. Hall Motor Co., Tex.Civ.App., 278 S.W. 350; Blum v. Strong, 71 Tex. 321, 6 S.W. 167; Bear Bros. v. Marx & Kempner, 63 Tex. 298; Comer v. Powell, Tex.Civ. App., 189 S.W. 88.

If a writ of attachment is issued and levied on the property of a defendant when the grounds upon which it is issued do not in fact exist, then the attachment is wrongfully sued out and the defendant is entitled to recover whatever damages he has sustained by the levy. If, however, the grounds on which the attachment was sued out did not exist but there was probable cause to believe that they did exist at the time said writ was sued out, then probable cause becomes important and defeats the right to recover other than actual damages. Bear Bros. v. Marx & Kempner, 63 Tex. 298; Christian v. Seeligson, 63 Tex. 405; Comer v. Powell, Tex.Civ.App., 189 S.W. 88; Chism v. C. W. Hall Co., Tex.Civ.App., 278 S.W. 350.

Among other assignments, appellant...