Seal v. Holcomb

Citation107 S.W. 916
PartiesSEAL v. HOLCOMB.
Decision Date04 January 1908
CourtCourt of Appeals of Texas

Appeal from Cooke County Court; C. R. Pearman, Judge.

Action by Jess Holcomb against W. T. Seal for the purchase price of an interest in a partnership meat market business. From a judgment for plaintiff, defendant appeals. Reversed unless a certain amount is remitted, and in that event judgment affirmed for the remainder.

Davis & Thomason, for appellant. Stuart & Bell, for appellee.

CONNER, C. J.

This suit was instituted by appellee in the county court of Cooke county on the 22d day of October, 1906. The substance of his petition was to the effect that he and appellant had theretofore been partners in business; that on the 25th day of August, 1906, appellee sold to the appellant his one-half interest in the partnership property, for which appellant promised to pay the sum of $310, but which he had wholly failed and refused to do, and appellee prayed for the recovery of the principal, $310, plus the accrued interest, $1.90, and costs of suit. Appellant appeared and answered admitting the partnership, the purchase, and his promise to pay, as alleged by appellee, but specially pleaded that at the time of the sale appellee was the bookkeeper of the concern, and represented that the indebtedness of the firm did not exceed $25, whereas in fact such indebtedness equalled $100. Appellant further answered that appellee during the continuance of the partnership had appropriated to his own use and benefit various sums of partnership moneys amounting to $100, with which he had not charged himself on the books of the firm. He also charged, by way of reconvention, that the writ of attachment which had been sued out by appellee at the time of the institution of the suit had been wrongfully and maliciously issued and levied upon his interest in partnership property of himself and one G. M. Kirby, and he prayed for actual damages in the sum of $500 and exemplary damages in the further sum of $300. The trial resulted in a verdict and judgment for appellee in the sum of $272.30 and costs of suit, with foreclosure of the attachment lien.

Error is first assigned to the refusal of the court to give the following special instruction requested by appellant, viz.: "If the attachment was wrongfully sued out and levied, the law implies some damage from the suing out of the attachment, its levy and the tying up of the property, and in such case you would have to find some actual damages, but a nominal sum." The evidence tends strongly to show, and for the purposes of our conclusion on the question it will be assumed, that the writ of attachment herein was sued out without legal justification and was wrongful. The levy, however, was upon the interest of appellant in the partnership property of himself and G. M. Kirby, and was made by leaving with the latter "notice" of the levy, as provided by Rev. St. 1895, art. 2352. Under this article of the statute actual seizure of the attached property is not contemplated, and there was no actual seizure of appellant's property in the present instance. Nor, as we conclude, does the evidence otherwise show injury caused by the levy of the writ. Appellant on this subject among other things testified: "He [appellee] told me the morning the attachment was run that he intended to attach my interest in the business. I had not been offering to sell the property, and was making no effort to dispose of it for any purpose, much less to place it beyond the reach of my creditors. Since the attachment was run I have continued to remain in the business, just as I did before the attachment was run. Mr. Kirby has not objected to my remaining there and continuing in the conduct of the business just as I did before the attachment. The sales have been as good since the attachment was run as they were before. Mr. Kirby was my partner, and the business continued after the attachment just like it did before."

It is very generally held that for every infraction of a legal right the law will infer some damage, and the appellant insists that the levy in question in legal effect deprived him of the use, possession, and enjoyment of the attached property, and excluded him from the business, thereby entitling him to at least nominal damages, and he relies upon the following authorities: Farrar v. Talley, 68 Tex. 349, 4 S. W. 558; Brown v. Bridges, 70 Tex. 661, 8 S. W. 502; Girard v. Moore (Tex. Civ. App.) 24 S. W. 652; Sutherland on Damages, vol. 1, p. 9. The precise point presented by appellant does not appear to have been involved in the case of Girard v. Moore, and the two other cases cited will be found upon examination to be cases where an actual trespass was committed in the levies made, and in this respect we think the cases distinguishable from the one before us. No case has been cited, nor have we been able to find one, where, in the absence of an actual trespass and in the absence of any proof of damage of any character, damages have been allowed. In Trawick v. Martin Brown Company, 79 Tex. 460, 14 S. W. 564, the Supreme Court approved the action of the trial court in sustaining a general demurrer to a plea in reconvention which alleged a wrongful and malicious issuance and levy of a writ of attachment upon certain real estate. The levy was made under our statute, which provides that in such cases it shall be sufficient for the officer to indorse the levy on the writ. It was distinctly held in that case that the defendant in attachment was not entitled to either actual or exemplary...

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10 cases
  • Martel v. Hall Oil Co.
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1927
    ...... and cases cited. Where the damage is merely nominal,. exemplary damages should not be allowed; Shaffer v. Austin, (Kan.) 74 P. 1118; Seal v. Halcomb,. (Tex.) 107 S.W. 916; Schwartz v. Davis, (Ia.) . 57 N.W. 849; Co. v. Knowlton, (Ia.) 108 N.W. 770;. Ladd v. Redle, supra. Witness ......
  • Allen v. Melton
    • United States
    • Court of Appeals of Tennessee
    • March 14, 1936
    ...... Chicago, etc., R. Co., 74 Iowa, 137, 141, 37 N.W. 116,. 118. Accordant: Girard v. Moore, 86 Tex. 675, 676,. 26 S.W. 945; Seal v. Holcomb, 48 Tex. Civ.App. 330,. 107 S.W. 916, 918; Lacy v. Gentry (Tex.Civ.App.) 56. S.W. 949, 950; Stewart v. Smallwood, 46 Tex.Civ.App. ......
  • Allen v. Melton
    • United States
    • Supreme Court of Tennessee
    • March 14, 1936
    ...etc., R. Co., 74 Iowa, 137, 141, 37 N.W. 116, 118. Accordant: Girard v. Moore, 86 Tex. 675, 676, 26 S.W. 945; Seal v. Holcomb, 48 Tex. Civ.App. 330, 107 S.W. 916, 918; Lacy v. Gentry (Tex.Civ.App.) 56 S.W. 949, 950; Stewart v. Smallwood, 46 Tex.Civ.App. 467, 102 S.W. 159, 160; Adams v. City......
  • Stockwell v. Brinton
    • United States
    • United States State Supreme Court of North Dakota
    • July 5, 1913
    ...46 Tex. Civ. App. 467, 102 S. W. 159;Lightfoot v. Murphy, 47 Tex. Civ. App. 112, 104 S. W. 511;Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S. W. 916;Beckham v. Collins, 54 Tex. Civ. App. 241, 117 S. W. 431;Thouron v. Skirvin, 57 Tex. Civ. App. 105, 122 S. W. 55. Contra: Vlasservitch v. Rail......
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