Rohrbough v. Leopold

• Decision Date: 10 May 1887
• Citation: 4 S.W. 460
• Parties: ROHRBOUGH and others v. LEOPOLD and others.
• Court: Texas Supreme Court

4 S.W. 460

ROHRBOUGH and others v. LEOPOLD and others.

Supreme Court of Texas.

May 10, 1887.

Appeal from Grayson county.

Bryant & Dillard and Hare & Head, for appellants. W. W. Wilkins and Woods & Cunningham, for appellees.

GAINES, J.

We think the court erred in overruling the motion to quash the writ of sequestration on the ground of the insufficiency of the bond. In Schrimpf v. McArdle, 13 Tex. 368, an attachment bond very similar to the one before us was held defective because it did "not correctly describe the parties or the suit." It is said by a recent text writer that the plaintiff in an attachment bond "should insert what is necessary to identify the bond with the suit." Wap. Attachm. 118. The writ of sequestration takes the property from the party in possession, to be held, if not replevied, during the pendency of the action, as is the case with the writ of attachment. The remedies are equally stringent, and no reason is seen why the same strictness should not apply to the procedure in the one case as in the other. In the bond under consideration the title of the suit is defectively stated in the margin. The name of the plaintiff's firm is given, but the place for the names of the defendants is left blank. The bond is made payable to J. E. Rohrbough and I. Franklin, without describing them as defendants; but is conditioned that plaintiffs "will pay to the defendants in said suit all such damages," etc., without stating who the defendants are. This gives rise to the conjecture that Rohrbough and Franklin are the defendants, but the fact does not clearly appear from the face of the bond. Tested by itself, the bond does not identify the suit, and fails to show that it complies with the statute in the essential requirement that it must be made payable to the defendants.

It is complained, also, that the court erred in admitting the testimony of defendant Franklin, as to an agreement made by him with Leon and H. Blum immediately after he executed the assignment, by which the latter promised to buy the goods if practicable, and, after getting their money out of them, to let him continue business with goods in their name, he receiving the profits. This occurred very shortly after the purchase from plaintiffs, and tended to show that such an arrangement may have been contemplated by Franklin at the time he purchased, and thereby tended to establish plaintiff's allegations of fraud and misrepresentation. For this purpose the testimony was admissible. O'Neal v. Will's Point Bank, 2 S. W. Rep. 754. The court gave a special instruction upon this evidence, so that the jury could not have misconstrued the purpose of its introduction.

The seventh and fourteenth assignments of error raise the question whether the plaintiffs could recover the goods of the assignee, Rohrbough, although they may have been obtained by misrepresentation. The rule is that an owner who is induced by fraud to part with the possession — and not the title — of his goods, may recover them even from one who has paid value for them without notice of his right. But, if he be so induced to sell his personal property to another, by proving the fraud, he may recover of his vendee, and of any one holding under him, save a bona fide purchaser for a valuable consideration. But in this case, Rohrbough merely held the goods under a deed of assignment made for the benefit of creditors, and occupies no better ground than his assignor. That such an assignee is not a bona fide purchaser is well established by the authority of adjudicated cases.

The eighth assignment of error is not sustained by the record, and is not well taken. The court, in the first paragraph of the charge, very fully and correctly instructed the jury as to what facts would entitle plaintiff to recover, and, among other things, told them, in effect, that Franklin must have known that the representations made by him were false; that they must have been such as would have induced a prudent man to make the sale, and must in fact have led to its consummation. The instruction relied upon to support this assignment was, in substance, that, if the sale was not effected through the false representations of Franklin, defendant Rohrbough was entitled to a verdict. If counsel, in view of the entire charge, had desired further instructions to the effect that, unless the representations were known to Franklin to be false, plaintiffs could not recover against Rohrbough, they should have asked them.

Tenth assignment of error is that "the court erred in his second charge to the jury, in telling them that there must be a delivery of the goods to Franklin, before the sale would be completed,...