Jacobs v. Totty

• Decision Date: 25 February 1890
• Citation: 13 S.W. 372
• Court: Texas Supreme Court
• Parties: JACOBS <I>et al.</I> <I>v.</I> TOTTY.

13 S.W. 372

JACOBS et al.v.

TOTTY.

Supreme Court of Texas.

February 25, 1890.

Appeal from district court, Houston county; NORMAN G. KITTRELL, Judge.

Action by William Totty against S. Jacobs, Bernheim & Co., and B. F. Holcomb. Judgment was rendered for plaintiff, and defendants appealed.

Nunn & Nunn, S. A. Denny, and Robert G. Street, for appellants. Maxey & Davis, A. W. Gregg, and T. T. Gammage, for appellee.

STAYTON, C. J.

Appellant firm, being creditors of W. H. Campbell, caused writ of attachment to be levied on a stock of goods claimed by appellee, which was sold to satisfy the debt due by Campbell. The goods belonged to Campbell prior to July, 1887, at which time appellee claims to have bought them. This action was brought by appellee to recover damages for the seizure and conversion of the goods, and the issues were: (1) Did Campbell sell the goods to Totty, as claimed? (2) Was that sale fraudulent as to creditors of Campbell?

There was much, and it may be said conflicting, evidence on the last question; but on the first the evidence all tended to show that a sale was made, though fraudulent it may have been. The first assignment of error is: "In the second paragraph of the charge the court improperly limits the defense to the issue of a fraudulent sale, when it was denied that any sale had ever been made, and there was strong circumstantial evidence tending to support such defense, and this error is repeated and perpetuated in succeeding parts of the charge, without mitigation or correction." The ninth assignment is: "The court erred in refusing defendants' special charge placing the burden of proof to show a sale, as contended for, on the plaintiff, and especially has the court erred in assuming as proved beyond dispute that there was an actual sale because Campbell and Totty say so, when all the independent facts and circumstances attending upon the parties and subject-matter, upon which defendants relied, contradicted them." So much of the charge of the court as has bearing on these assignments is as follows: "(1) The plaintiff, William Totty, alleges that he was the owner of the goods described in his petition, and that defendants seized and converted them to their own use, and these allegations he is required to prove by the preponderance of evidence; that is, by the greater weight and degree of credible evidence. (2) The defendants S. Jacobs, Bernheim & Co., who were creditors of Campbell, allege that the goods were not Totty's property, because the sale made by Campbell to him was fraudulent in law; being, as they aver, made with the intent to hinder, delay, or defraud Campbell's creditors, and that, therefore, it conveyed no title, but was void. This allegation of fraudulent sale the defendants are required to establish to your satisfaction, by a preponderance of evidence, in like manner as plaintiff is required to show ownership by him, and conversion by defendants, as instructed in the preceding paragraph. (3) It is admitted that for some time prior to July, 1887, Totty was conducting for Campbell a cash store in Grapeland, in the name of him, (Totty,) and he claims to have bought the stock of goods in said store from Campbell by purchase, for a valuable consideration; while the defendants deny that there was any such purchase, and aver that, if there was anything in the nature of a sale, it was invalid, and in law fraudulent and void. (4) Whether there was any sale by Campbell to Totty, and, if so, whether the same was legal and valid, or was fraudulent and void, is a question of fact for you to decide, under the rules of law laid down in this charge. (5) The law you will receive in the charge, and be governed thereby; of the facts proved, the weight of the evidence, and the credibility of the witnesses you are the sole and exclusive judges. (6) If you believe Campbell agreed to sell and Totty to buy the goods, and that they agreed upon a price and terms, and that thereupon Campbell placed Totty in possession of said goods as owner, under and in pursuance of said agreement of sale so entered into between them, and so executed by said delivery of possession, the title to said goods rested in Totty, and, in the absence of what you are hereinafter instructed would constitute fraud in law, said sale was valid."

The first and second paragraphs of the charge it will be seen were intended to inform the jury as to the general nature of the claim asserted by each party, and as to the burden of proof resting on each. There was no pretense that Totty owned the goods otherwise than through a purchase from Campbell, and, in view of that fact, the first paragraph must be understood to inform the jury...