Hudson v. Willis

• Decision Date: 19 March 1886
• Docket Number: Case No. 1982
• Court: Texas Supreme Court
• Parties: THOS. F. HUDSON, JR., v. P. J. WILLIS & BRO.

65 Tex. 694

THOS. F. HUDSON, JR.,

v.P. J. WILLIS & BRO.

Case No. 1982

Supreme Court of Texas.

March 19, 1886.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

This suit was instituted by Thos. F. Hudson, Jr., in the district court of Galveston county, March 21, 1883, against P. J. Willis & Bro., to recover damages, actual and exemplary, in the sum of $200,000, for the wrongful seizure and conversion of a stock of goods at Fort Worth, Texas, on October 23, 1882, at that time in the possession of plaintiff, and valued at $61,544.98. Judgment was given for defendants on April 30, 1884.

The evidence showed that plaintiff, T. F. Hudson, Jr., purchased a stock of goods and commenced business, in his own name, in Caldwell, Texas, in September, 1881; that, in January, 1882, he purchased of T. F. Hudson & Son a stock of goods, at Rockdale, Texas; that he, afterwards, removed both stocks of goods to Fort Worth, and did business there under his own name; that the firm of T. F. Hudson & Son, composed of T. F. Hudson, Sr., and John A. Hudson, had failed, and had not settled with all its creditors, at the time of the sale to plaintiff, and at the time of the levy complained of.

Defendants introduced evidence to show that T. F. Hudson and John A. Hudson were employed in the plaintiff's store, at Fort Worth; that T. F. Hudson, Sr., negotiated the lease of the store-house at that point, and signed his own name thereto, and other evidence tending to show that the transfer of the stock, in January, 1882, was not bona fide, but that the goods still belonged to T. F. Hudson, Sr. Among other things, he introduced the evidence of Runge and Street, that, about April 5, 1882, Thos. F. Hudson, Sr., while settling up his own affairs, at Runge's office, in Galveston, when Thos. F. Hudson, Jr., was not present, said that if he were to “drop the junior from his name” he would be worth $100,000; that Thos. F. Hudson, Sr., had previously said to Street (plaintiff not being present) that he had a son of age whose name he could use; that Thos. F. Hudson, Sr., had deposited $15,000 with Kauffman & Runge, December 15, 1881, against which Thos. F. Hudson, Jr., was authorized to, and did, draw, when he desired it; that Kauffman & Runge kept the accounts of Thos. F. Hudson, Sr., and Thos. F. Hudson & Son, agents, and Thos. F. Hudson, Jr., separate, but consolidated them in January, 1883, but that Runge claimed he did not know there was such a man, in fact, as plaintiff, and that he considered it to be Thos. F. Hudson, Sr., using the name of Thos. F. Hudson, Jr.

Runge also testified as to correspondence and transaction with T. F. Hudson, Sr., as agent for T. F. Hudson, Jr., tending to show that T. F. Hudson, Sr., owned the stock of goods, and was doing business in his son's name.

Plaintiff objected to the introduction of all this evidence as not authorized under the pleading.

Plaintiff also objected to the introduction of evidence showing an agreement between defendants, Kauffman & Runge, and T. F. Hudson, Sr., under which defendants had consented to the assignment by T. F. Hudson & Son for the benefit of accepting creditors, and the breach of that agreement by T. F. Hudson, Sr., also showing other circumstances connected with the assignment.

Hume & Shepard and Sayles & Bassett, for appellant, on the effect of the plea, cited: Gen. Laws, 16th Leg., ch. 53, sec. 3, p. 58; Sanborn v. Norton, 59 Tex. 308;Blum v. Wellborne, 58 Tex. 157;Carson v. Prater, 6 Cold. 565; Demich v. Chapman, 2 Johns. 132; King v. Orser, 4 Duer 438; Craig v. Gilbreath, 47 Me. 418.

On evidence, they cited: Watts v. Johnson, 4 Tex. 311;Mims v. Mitchell, 1 Tex. 448;Guess v. Lubbock, 5 Tex. 538-540;Lemmon v. Hanley, 28 Tex. 226, 227;Marley v. McAnelly, 17 Tex. 660;Denison v. League, 16 Tex. 407, 408;Thompson v. Thompson, 12 Tex. 329, 330; Carson v. Prater, 6 Cald. 565; Demick v. Chapman, 11 Johns. 132; King v. Orser, 4 Duer 438; Craig v. Gilbreath, 47 Me. 418; O'Brien v. Hillburn, 22 Tex. 616;Fox & Bro. v. Willis & Bro., 60 Tex. 373;Lacoste v. Bexar county, 28 Tex. 420;Speake v. White, 14 Tex, 364;Tucker v. Hamlin, 60 Tex. 171;DeGarca v. Galvan, 55 Tex. 53; Dealy v. Gallup, 5 (Gilfillan) Minn. 97; Wustland v. Potterfield, 9 W. Va. 438.

On the charge of the court, they cited: O'Brien v. Hillburn, 22 Tex. 616-624;Davis v. Loflin, 6 Tex. 497;Hudson v. Wilkinson, 61 Tex. 606;Andrews v. Beck, 23 Tex. 457, 458;Linard v. Crossland, 10 Tex. 464, 465; Hugo & Smelzer v. Brune, Tex. Law Rev., vol. 3, p. 49; Poe v. Polk, Tex. Law Rev., vol. 3, p. 343; Porter v. Miller, 7 Tex. 479; I. & G. N. R'y Co. v. Timmerman, 61 Tex. 660; 2 Greenl. on Ev., secs. 618, 637; Cooley on Torts, 436, 437, 442-446; 1 Waterman on Trespass, sec. 515; Williams on Personal Prop., side p. 23-27; Notes of Freeman to Orser v. Storms, 18 Am. Dec. 543;Hammer v. Wilsey, 17 Wend. 91; Thompson v. Kerns, 2 Watts 182, 183; Wustland v. Potterfield, 9 W. Va. 438; Carson v. Prater, 6 Cold. 565; Crawford v. Bynum, 7 Yerger (15 Tenn.) 380; Criner v. Pike, 2 Head. (39 Tenn.) 397; Cooke v. Howard, 13 John. 275; Fiske v. Small, 25 Me. 453; Brown v. Ware, 25 Me. 411; Barker v. Chase, 24 Me. 230, 231; Craig v. Gilbreath, 47 Me. 416; Morse v. Pike, 15 N. H. 529; King v. Orser, 4 Duer. 431; Derby v. Gallup, 5 Gilfillan, (Minn.) 85; Fletcher v. Cole, 26 Vt. 170;Miller v. Kerby, 74 Ill. 242;Gibbs v. Chase, 10 Mass. 125;Adams v. O'Connor, 100 Mass. 515;Ullman v. Leonard, 7 Gray 554;Duncan v. Spear, 11 Wend. 54; Carter v. Bennett, 4 Fla. 284; Harker v. Dement, 9 Gill 7; Vining v. Baker, 53 Me. 544; Little v. Fossett, 34 Me. 545; Cook v. Patterson, 35 Ala. 102-105; Haslem v. Lockwood, 37 Conn. 500; White v. Webb, 15 Conn. 302; Brandon v. Planters and Merchants Bank, 1 Stewart (Ala.) 320; Pinkham v. Gear, 3 N. H. 484;Wooley v. Edson, 35 Vt. 222; Knabb v. Winchester, 11 Vt. 351;Bartlett v. Hoyt, 29 N. H. 317, 320, 321;Coffin v. Anderson, 4 Blackf. 410, 411; Borwick v. Wood, 3 Jones N. C. Law, 306; Hubbard v. Lyman, 8 Allen 520;Burke v. Savage, 13 Allen 408;Magee v. Scott, 9 Cushing 150; Wymouth v. Chicago N. W. R'y Co., 17 Wis. 567-569; Lyle v. Barker, 5 Binney 457;Spoor v. Holland, 8 Wend. 445;Ingersoll v. Van Bokkelin, 7 Cowen, 670.

G. E. Mann and McLemore & Campbell, for appellees, on evidence, cited: Cox v. Jackson, 6 Allen, 108;Bradley v. Hale, 8 Allen, 59;Willbur v. Strickland, 1 Rawle, 460;Redenbach v. Redenbach, 1 Rawle, 362; note f to sec. 39 of 3d Am. Ed. Benjamin on Sales; Babb v. Clemison, 10 S. & R. 426; Abney v. Kingsland, 10 Ala. 355; Helser v. McGrath, 58 Pa. St. 460.

On the charge of the court, they cited: Mims v. Mitchell, 1 Tex. 447;Caldwell v. Haley, 3 Tex. 319;Carter v. Hunt, 2 Tex. 207;Guess v. Lubbock, 5 Tex. 535;Tisdale v. Mitchell, 12 Tex. 68, 70;McGehee v. Shafer, 9 Tex. 20;Boynton v. Tidwell, 19 Tex. 118; H. & T. C. R'y. Co. v. Harn, 44 Tex. 628; Rules District Court, No. 7; Frisch v. Caler, 21 Cal. 71;Woodworth v. Knowlton, 22 Cal. 164;Davis v. Warfield, 38 Ind. 461;Kenedy v. Shaw, 38 Ind. 474;Sparks v. Heritage, 45 Ind. 66;Thompson v. Swatzer, 43 Ind. 312;Rotan v. Fletcher, 15 Johns. 208; Schermahorn v. Volkenberg, 11 Johns. 529; Davis v. Hoppock, 6 Duer 256; Robinson v. Frost, 14 Barb. 536;Ely v. Ehle, 3 N. Y. 510;44 Am. Rep. 44;Stearns v. Vincent, 50 Mich. 209; Bliss on Code Pl., secs. 328, 333, 382; Green's Texas Pl. and Pr., secs. 100, 779 and authorities; Greenl. on Ev., sec. 648; Gould's Pl., secs. 306-308, 325, 334, et seq; 1 Smith's Leading Cases, 490, 559; 3 Suth. on Damages, 524-528; Wallace v. Finberg, 46 Tex. 46;Hillebrand v. Booth, 7 Tex. 501;Porter v. Miller, 7 Tex. 479; I. & G. N. R'y v. Benitos, 59 Tex. 329;McCamant v. Batsel, 59 Tex. 370;Reid v. Lucas, 42 Tex. 533; Green v. Barney, 20 Am. Dec. 315; Clark v. Foxcroft, 20 Am. Dec. 315; 6 Greenl. 296; Langford v. Owsley, 2 Bibb, 215;4 Am. Dec. 700;Peoria R'y v. Thos. Bryant, 57 Ill. 479;Sanborn v. Hamilton, 18 Vt. 592;Cook v. Howard, 13 Johns. 283;Brady v. Whitney, 24 Mich. 155;Davidson v. Waldron, 31 Ill. 129;Sylvester v. Girod, 4 Rawle, 189; 3 Starkie on Ev. 1504; Bacon's Ab. Title, Trover 702, 706; Pridgin v. Strickland, 8 Tex. 434; G., C. & S. F. R'y v. Levy, 59 Tex. 547;Ricks v. Pinson, 21 Tex. 508; Stenitt's Executors v. Hoster, 37 Ala. 366; Havens v. N. H. R'y, 28 Conn. 90-93; Turner v. Carter, 1 Head 250; Suth. on Damages, 258, 761, 776; Cary v. Day, 36 Conn. 152; Squire v. Hollenbeck, 9 Pick. 551;Jones v. Allen, 38 Tenn., 1 Head 626, 627;Harter v. Crill, 33 Barb. 285; Rosenfield v. Express Co., 1 Wood 137; Kedder v. Jemison, 21 Vt. 112; Vosberg v. Welch, 11 Johns. 177; Waterman on Tresp., p. 633, sec. 616; Champion v. Vincent, 20 Tex. 816; Suth. on Damages, 236, 257; Bushe v. Prosser, 11 N. Y. 347, 362, 365;Heldt v. Webster, 60 Tex. 209;Ormond v. Hays, 60 Tex. 182;Griffin v. Chubb, 7 Tex. 612;Herndon v. Ennis, 18 Tex., 412; Rost v. Harris, 12 Abb. Pr. Rep., N. Y. 446; Robinson v. Frost, 14 Barb.; Davis v. Hoppock, 6 Duer 254; Caldwell v. Brugerman, 4 Minn. 190; Fowler v. Burgett, 16 Ind. 343;Greenway v. James, 34 Mo. 327;Paton v. Rucker, 29 Tex. 411;Stephenson v. Little, 10 Mich. 439.

WILLIE, CHIEF JUSTICE.

The appellant (plaintiff below) brought this suit against P. J. Willis & Bro. to recover damages, actual and exemplary, for the wrongful and malicious seizure and conversion of a stock of goods, of which the plaintiff was possessed as of property, and with which he was doing business as a merchant, at Fort Worth, Texas. The seizure was alleged to have been made by the sheriff of Tarrant county, under an execution issued upon a judgment in favor of Willis & Bro., and against T. F. Hudson & Son, of which latter firm, the plaintiff was not a member. It was further alleged that Hudson & Son had no interest in the goods; that they had made an assignment for the benefit of such creditors as should accept of its terms and release them from their respective claims; that Willis & Bro. had accepted the...