Kerbs v. Provine

• Decision Date: 11 November 1890
• Citation: 14 S.W. 849
• Parties: KERBS <I>et al.</I> v. PROVINE.
• Court: Texas Supreme Court

14 S.W. 849

KERBS et al. v. PROVINE.

Supreme Court of Texas.

November 11, 1890.

Commissioners' decision. Appeal from district court, Tarrant county; R. J. BOYKIN, Judge.

Capps & Cantey, for appellants.

HOBBY, J.

Appellants brought this suit by attachment against the appellee, Provine, to recover a debt amounting to $2,032.40. That the debt was due was admitted, but appellee pleaded in reconvention actual and exemplary damages resulting to him from the levy of the attachment. A trial was had in November, 1888, and a verdict rendered in favor of appellants for the debt, and for appellee for the sum of $2,500 actual and $1,200 exemplary damages. The first question presented is whether there can be a recovery by a defendant alone in attachment for damages resulting from the issuance of the writ and its levy on partnership goods of the defendant and another. This question is raised by the twelfth assignment of error. The twelfth error assigned is the refusal of the court to charge the jury as follows: "If you believe from the evidence in this case, and the instructions heretofore given you, that the defendant, Provine, is entitled to recover any actual damages, and if you further believe from the evidence that J. M. Brannon was the owner of any interest in the goods and merchandise attached by plaintiffs, and that said J. M. Brannon has not released and relinquished to the plaintiffs whatever interest he may have owned in said property, then it will be your duty to find for said Provine, as actual damages on account of the seizure and sale of said goods, only such an amount as will be equal to the interest which said Provine owned in and to said goods, finding in plaintiff's favor the extent of the amount that you may find was owned by J. M. Brannon." Upon this subject, the appellee, Provine, testified as follows: "Brannon and I went in together at the organization of the Imperial Cigar Co., which was in September, 1886. My books show, I think, that Brannon put in fifteen or eighteen hundred dollars, and my stock invoiced $2,579. I had in about that amount, with other goods we carried in stock. I put in about $2,000, and we divided the profits of the business and stood the losses. We were not full partners. I did not recognize him in any capacity in the business. * * * Brannon did not attend to the acceptances. He handled all the acceptances for a while, and then I stopped it. We divided the profits and losses on the cigars. I had aimed to give him a half interest in the cigars. I gave him a half interest in the profits of the cigars. The capital account in this book does show that Brannon was credited with $800 and Provine $800 in the cigar business. It is entered in my books as cash capital, $800 apiece." J. M. Brannon testified: "I had a business connection with E. W. Provine in 1886 and 1887. We were in the cigar business here, and were full partners. We had a verbal contract, — put in $800 apiece, and went on with the business. I had access to the books. The book now shown me shows a credit of $500 by merchandise. That is cigars I placed in there. Then Provine owed me, it shows here, about $300, and I guess that is right. Provine was to put in $800, and I put in $800. The capital was $1,600 and we went in business on that. The profits were to be divided equally, and we were to bear the losses equally. Provine was to keep the books. The Imperial Cigar Co. was to be run in the name of E. W. Provine." The inventory of the goods attached shows that about one-half consisted of cigars. Brannon testified to owning a half interest in those levied on. He further stated that no partnership settlement had been had, and he had not transferred his interest to Provine, nor was he claiming any interest in this suit. Under this state of the proof, we think an instruction should have been given, the effect of which would have been to preclude a recovery by appellee alone, for damages which the evidence showed grew out of the levy upon Brannon's interest in the goods. There was testimony which tended to show that whatever injury was sustained by appellee was sustained jointly with Brannon, and it is an elementary and general rule which requires that for such injury there must be a joint recovery. There is nothing in this case making it an exception to that...