Meyer v. Orynski
| Decision Date | 24 January 1894 |
| Citation | 25 S.W. 655 |
| Parties | MEYER v. ORYNSKI. |
| Court | Texas Court of Appeals |
Appeal from district court, Bexar county; W. W. King, Judge.
Action by J. H. A. Meyer against L. Orynski. From a judgment for defendant, plaintiff appeals. Reversed.
Leo Tarleton and C. A. Keller, for appellant. Simpson & James, for appellee.
Statement of the Case.
On the 23d day of July, 1888, appellant, as trustee for certain parties, instituted this suit to recover from appellee the possession of a certain parcel of land situated in the city of San Antonio, Tex., together with all buildings and improvements thereon, as well as all machinery used in and for an ice factory and brewery thereon. A writ of sequestration was at the same time applied for, which was placed in the hands of E. O. Stevens, constable, and executed by his taking possession of the property sued for, which included 54 large casks, which contained about 900 barrels of beer owned by appellee. On September 7, 1888, the appellee answered by alleging that on the 3d of February, 1888, the real estate described in appellant's petition, and all improvements, machinery, and other personal property thereon, was owned and possessed by a corporation known as the Alamo Ice & Brewing Company, and used by said company for the manufacture of beer and ice for sale. That on said day the company became indebted to appellant, and to the several persons and firms named in his petition, in sums aggregating $15,000, and to secure such indebtedness it executed to Aransas Prescott, as trustee, a deed of trust upon the real property described in appellant's petition, together with all improvements and "all machinery used in and for the brewery and ice factory established thereon." That the trustee, by virtue of the power of sale contained in the deed of trust, for the purpose of enforcing the collection of said indebtedness, on the 12th day of July, 1888, sold the property described therein, and, in pursuance of the sale, executed a deed in the name of said corporation to appellant for the real estate, improvements, and machinery described in said deed of trust; and that such deed constitutes appellant's sole title to the property sought to be obtained by this suit. That, after the execution of the deed of trust, said corporation made an assignment for the benefit of its creditors, with appellee as assignee, who thereupon qualified, whereby he became invested with the title and the possession of all the property of every kind belonging to said corporation, and was so entitled and in possession of said ice factory and brewery, and all property contained therein, when appellant bought at said trustee's sale, and his writ of sequestration was enforced. And, for plea in reconvention as such assignee, he alleged that, when said writ of sequestration was in the hands of the officer to be executed, appellant, by his attorneys at law, directed said officer to seize and take from his possession, by virtue of said writ, certain personal property belonging to him as such assignee, and not embraced in said deed of trust, and to which appellant had and has no title whatsoever, to wit, 54 large wooden casks for storing beer, of the value of $6,500, and 700 bars of ice, of the value of $200. Several other items of personal property were mentioned, but it is not necessary to specify them. That on August 11, 1888, plaintiff replevied, from the officer levying said writ, all the property so levied on, and took the same into his possession. That said personal property, except the large wooden casks and ice, was, by order of plaintiff's attorneys, relinquished to defendant on August 11, 1888, after having been thus detained from defendant 13 days. That said large wooden casks and said ice have never been relinquished to defendant, and are still withheld by plaintiff, though defendant has often demanded same, and protested in every possible way against said unlawful and unwarranted seizure and detention. That said 54 large wooden casks have been in the manner aforesaid seized, appropriated, and converted by plaintiff to his own use and benefit, and defendant deprived thereof, whereby plaintiff and his bondsmen have become liable to pay defendant the value thereof. That said 54 large wooden casks, at the time of the seizure and appropriation thereof, contained beer of the quantity of 900 barrels, of the value of $6 per barrel, which beer was likewise taken from defendant's possession by plaintiff when said casks were seized, and has since, and during said seizure, become wholly destroyed and rendered unfit for use, whereby defendant, by said wrongful seizure, has been damaged in the further sum of $5,400. The defendant further alleged that by the wrongful seizure and appropriation of said ice on hand, and said 54 large casks containing beer as aforesaid, and of 200 beer kegs which were on hand, ready for use in marketing and selling said beer, he was prevented from selling any of said beer whatever, when, had said wrongful seizure not been made, he would have been able, in the ordinary course of business, and before said beer had time to become stale or be destroyed, to sell not less than 700 kegs thereof at the rate which defendant was selling beer, when thus stopped, to wit, $1.50 per keg, making a further actual damage to defendant of $1,050. The defendant's answer also alleged matters to show the liability of the sureties on plaintiff's sequestration bond, and to show the plaintiff was liable to him for exemplary damages by reason of the alleged unlawful seizure of the property claimed by defendant. The plaintiff excepted to defendant's answer on the ground that it was wholly insufficient in law to warrant a recovery thereon, but specially to the last clause above quoted, upon the ground that the damage alleged at $1,050 was too remote, speculative, and problematical, and denied all the allegations in said answer. After the exceptions were filed, the defendant filed a trial amendment, in which he alleged that the fair and reasonable market value of the 700 kegs of beer, which he alleged he could have sold before the beer became stale, was $1.50 per keg, "making the actual damage in said behalf to defendant the sum of $1.050." The exceptions of plaintiff to defendant's answer were overruled, and the case was tried by the court without a jury, who rendered judgment in favor of plaintiff for the premises and property sued for, including the 54 large wooden casks, and in favor of the defendant on his plea in reconvention for the sum of $5,600 for the seizure and loss of the 54 beer casks and 700 bars of ice, from which judgment this appeal...
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...engines became a fixture. We think this contention is correct, and in addition to the foregoing authorities are the following: Meyer v. Orynski, 25 S. W. 655; Larue v. American Diesel Engine Co., 176 Ind. 609, 96 N. E. 772; Campbell v. Roddy, 44 N. J. Eq. 244, 4 Atl. 279, 6 Am. St. Rep. 889......
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