Jones v. Williams

• Citation: 41 Tex. 390
• Parties: E. W. JONES AND WIFE v. JOHN WILLIAMS ET AL.
• Decision Date: 01 January 1874
• Court: Texas Supreme Court

41 Tex. 390

E. W. JONES AND WIFE

v.JOHN WILLIAMS ET AL.

Supreme Court of Texas.

1874.

APPEAL from Cherokee. Tried below before the Hon. M. Priest.

This suit was originally begun by J. P. Douglass, as guardian for F. M. Thompson, who was alleged to have been non compos mentis, and of Fannie Marshall, a minor. During the pendency of the suit F. M. Thompson died, and Fannie Marshall married E. W. Jones, after which the suit was prosecuted in the name of E. W. Jones and his wife, who thus became sole claimants.

The suit was for the recovery of twenty thousand dollars, the alleged value of sixty-four bales of cotton charged to have been fraudulently taken from F. M. Thompson and converted by defendants in the year 1864.

The defendant, Williams, in his answer alleged that on the 11th day of December, 1863, and during the year 1864, he was the duly-appointed and acting agent of the late Confederate Government for the purchase of cotton; that his authority extended to the purchase for said Government of one half the cotton in said county, to pay for the same, and give indemnity to the owner that the remaining half should not afterwards be impressed by the Government; that on, to wit, the ____ day of ____, 1864, in pursuance and accordance with his said authority, and the instructions from his superior officer in command, he purchased of said F. M. Thompson, both being citizens of said Confederate Government, said sixty-four bales of cotton, the same being then and there in the actual possession, control, management, and apparent ownership of the said Thompson, and claimed by him; that afterwards, to wit, on the 11th day of May, 1864, he and the said Thompson weighed, marked, designated, and set apart said cotton to said defendant as such agent for the use and benefit of said Government; that said defendant then and there fully paid the said Thompson for said cotton the price agreed upon between them, which was accepted and received by him in full satisfaction thereof, whereupon the said Thompson made, executed, and delivered his bill of sale of the same, which was made a part of amended answer, and the said defendant Williams gave him, on behalf of said Government, an obligation or indemnity protecting the remainder of said cotton from impressment; that the cotton so purchased was left in charge of said Thompson, and defendant Williams having reported his action to his superior officer, the cotton was thereby, so far as he was concerned, turned over to said Government; that said cotton was afterwards taken away by a train of wagons and converted by said Government to its own use and benefit; that at the time said cotton was so actually taken away he had turned it over to his said superior officer as aforesaid, and had, in fact, nothing further to do with it, and positively refused to take control over it; that the only authority or control he ever had or exercised over said cotton was strictly as such Government agent, and that he never had or received any of the proceeds of the same whatever.

It may be here remarked that the evidence fully sustained every allegation in the answer of defendant Williams.

Defendant Barrett adopted substantially the answer of his co-defendant Williams, pleading that he was also a cotton agent of said Government, and whatever he did in ordering the removal of said cotton was done as such agent. Defendant Hall answered by general denial and general demurrer. Defendant Hamilton having failed to make any appearance, judgment by default with a writ of inquiry was taken against him.

The plaintiff demurred to the answer of Williams and Barrett generally and specially, and alleged that the said laws and orders of the Government of the Confederate States were in violation of the Constitution and laws of the United States, and were null and void, and that hence defendants could not justify under the same. A trial was had at the July term, 1872, which, the demurrer of plaintiffs being overruled, resulted in a verdict and judgment for defendants, Williams, Barrett, and Hall; and under the charge of the court the damages under the writ of inquiry were assessed, and judgment rendered against defendant Hamilton for $7,488. Motion for a new trial overruled, and appeal taken.

The court gave the jury, among other instructions, the following, viz: “Texas, during the civil war, being a part of the territory under the control of the Confederate Government, was subject to said Government, and the citizens of Texas were necessarily bound to obey and comply with the laws of said Government, and with the military orders of E. Kirby Smith, lieutenant general commanding the department; and all officers and agents acting under him, and in accordance with the instructions given them, are protected from personal liability and accountability.”

T. J. Word and A. M. Jackson, for appellants, cited Whitmore v. Allen, 33 Tex., 355; The Sequestration Cases, 30 Tex., 700,et seq.;Hickman v. Jones, 9 Wallace, 200; Bayliss v. Estes, 1 Heiskel, 78; Wiley v. Wiley, 33 Tex., 358.

Bonner & Bonner, for appellees, cited George v. Stevens, 31 Tex., 675;Thorington v. Smith, 8 Wallace, 1; Vattel, book 3, chap. 28, p. 426; The Prize Cases, 2 Black, 668, 669;Trevino v. Fernandez, 13 Tex., 630;United States v. Palmer, 3 Wheaton, 610; The Divina Pastora, 4 Wheaton, 52; The Santissima Trinidad, 7 Wheaton, 283;Price v. Poynter, 1 Bush., 387;Bell v. L. & N. R. R. Co., 1 Bush, 404;Brakebill v. Leonard, 40 Ga., 60; 1 Greenl. Ev., § 82; Latham v. Selkirk, 11 Tex., 321;Brashear v. Martin, 25 Tex., 202;Jackson v. Van Dusen, 5 Johns. 157;Burton v. Bondies, 2 Tex., 203;Horton v. Reynolds, 8 Tex., 284;Parker v. Leman, 10 Tex., 116.

DEVINE, ASSOCIATE JUSTICE.

This suit was commenced in the name of J. P. Douglass, as guardian of Francis M. Thompson and Fannie Marshall, in the District Court of Cherokee county, on the 10th day of October, 1865, to recover the value of sixty-four bales of cotton, owned jointly by said Thompson and Marshall. The petition averred that Thompson became of unsound mind about the 1st of March, 1864, and has so continued; that on or about September 30, 1864, Thompson, after due proceedings before a competent tribunal in Cherokee county, was found, and so declared, of unsound mind, and that in October, 1864, petitioner was appointed guardian of Thompson and of the minor, Fannie Marshall.

The petition charged that the defendants, John Williams, Wm. W. Barrett, A. J. Hamilton, and Robert Hall, fraudulently combining to defraud the plaintiffs of their property, did, after Thompson became of unsound mind, and on or about the 30th of June, 1864, and down to October of the same year, take, without any legal right, sixty-four bales of said cotton, each bale being averred to be worth three hundred dollars, by reason of which plaintiffs were damaged to the amount of twenty thousand dollars. The petition contains the usual prayer for damages, &c., &c.

The defendant, Williams, excepted generally and in special terms to the petition, and answered with a general denial, and averred that from the 11th of December, 1863, and during the year 1864, he was acting in Cherokee county as the agent of the Confederate States for the purchase of cotton, and as such agent purchased the same; that in the purchase of said cotton he acted within the scope of the authority vested in him by his superior officers, duly authorized to act as the officers of said Government, which was then the only existing de facto Government of Texas and other States; that Francis M. Thompson and defendants were both citizens of said Government; that Thompson had the sole control and management of the cotton, and was the only known owner of the same.

Defendant further averred that in 1864 he purchased for a valuable consideration the 64 bales of cotton mentioned in plaintiffs' petition, which Thompson had consented to sell, and did sell to defendant, as agent of the Confederate States, and “that afterwards, on the 11th of May, 1864, said 64 bales of cotton were by said Francis M. Thompson and defendant weighed, marked, designated, and set apart to defendant as such agent;” that defendant fully paid then and there the price agreed upon for said cotton; that defendant then gave to said Thompson the written guaranty which he was authorized to give, protecting the remaining half of 64 bales of plaintiffs' cotton from impressment, seizure, or molestation; that the money and guaranty then received by Thompson were accepted freely by him as full satisfaction for the cotton so purchased. There were other defenses by Williams not necessary to be noticed.

The defendant Barrett answered, adopting the exceptions and answers of his co-defendant Williams, and averred that his action in ordering the removal of the cotton was in obedience to the obligations imposed upon him as an officer of the cotton bureau.

The defendant, Robert Hall, excepted generally, and answered with a general denial.

A. J. Hamilton made default, and a judgment interlocutory was entered against him, and a writ of inquiry demanded.

The minor, Fannie Marshall, having intermarried with William E. Jones, and the interest of Francis M. Thompson having, after his death, vested in his widow, and by virtue of the will of William J. Thompson, her husband, William E. Jones, and herself were substituted as plaintiffs; and after various amendments by plaintiffs and defendants, which were in substance repetitions of their previous pleadings, the cause was tried and a verdict rendered by the jury in favor of the defendants, Williams, Barrett, and Hall. A verdict under the charge of the court for the value of the 64 bales was found by the jury against A. J. Hamilton, who had not answered.

The plaintiffs moved for a new trial, and assigned as grounds for the same: 1st. “Because the court erred in permitting the depositions of Guy M. Bryan and William J. Hutchins to be read in evidence. 2d. Because the court...