Travis v. Duffau

• Decision Date: 01 January 1857
• Citation: 20 Tex. 49
• Parties: CHARLES E. TRAVIS v. FRANCIS T. DUFFAU.
• Court: Texas Supreme Court

20 Tex. 49

CHARLES E. TRAVIS

v.FRANCIS T. DUFFAU.

Supreme Court of Texas.

1857.

The breach of a nudum pactum cannot inflict an injury capable of legal redress; nor, it seems, become the basis of a charge of fraud. But quere, as to the latter proposition?

Where a draft on the agent of the drawer is payable generally, and the drawer would claim a benefit from a cotemporaneous agreement that it should be accepted payable out of the first money of the drawer, which should come to the hands of the drawee (it was not clear whether it had not been so accepted, or whether the payee had not refused to present it for such acceptance); it was said that the drawer ought to show at least that the receipt of such acceptance would not have been equivalent to an indefinite postponement of the payment of the draft.

Where the defendant had sued the plaintiff by publication, in a justice's court, and the plaintiff's agent, seeing the advertisement, went to the defendant to see about it, and the defendant promised to dismiss the suit, but failed to do so, and took judgment, and caused execution to be issued, upon which a tract of land, the property of the plaintiff, alleged to be worth $5,000, was sold to a third person, without notice, for $150; and the plaintiff or his agent did not know of the judgment until too late to prevent the sale by legal process or payment of the money; it was held that if it were admitted that the defendant was liable for direct damage resulting from his failure to dismiss the suit, yet the loss of the tract of land was a remote consequence (if a consequence at all of such failure) for which the defendant was not responsible. And see the allegations of fraud.

It would seem that a sheriff may levy upon and sell so much of a tract of land as shall be sufficient to discharge the execution.

Appeal from Travis. Tried below before the Hon. Thomas H. DuVal.

The petition alleged as follows: That on or about the 21st day of April, 1855, your petitioner and the said defendant Duffau had a settlement of their matters then outstanding, of all accounts, judgments, claims and demands, and that upon such settlement your petitioner was debtor to the said defendant in the sum of sixty-three 40-100 dollars; that thereupon your petitioner then executed and delivered to the said defendant his bill of exchange drawn upon M. C. Hamilton, who was then acting as the agent of your petitioner, for the amount above stated, with the full understanding that said Hamilton had not any money in his hands out of which the said claim was to be or could be satisfied, and the same was delivered with the full understanding that the said Hamilton would accept the same to be paid out of the first money that should come to his hands as the agent of petitioner, or out of any of the avails of the effects of your petitioner, then under the control or in the possession of the said Hamilton. Said bill of exchange was in the words and figures following, to wit:

$63.40. M. C. Hamilton, Esq. Dr. Sir: Please pay to F. T. Duffau of Austin, or his order, sixty-three 40-100 dollars, with interest from date, and much oblige your ob'd't s'v't. Austin, April 21, 1855.

CHAS. E. TRAVIS.

Petitioner alleges that at the time of the delivery of said bill of exchange or order, it was understood and agreed that the same was to be presented to the said Hamilton, and would receive the conditional acceptance or qualified acceptance above specified. Petitioner alleges the readiness of the said Hamilton to accept the said order or bill of exchange so drawn upon him, and a readiness on his part to pay the same, as was agreed between your petitioner and the said defendant, out of the means of petitioner, as soon as the same or any part thereof could be made available; and petitioner alleges the constant readiness on his part, and on the part of said Hamilton, to carry out the understanding to the letter, up to the time of the commencement of this suit. Petitioner alleges that the said defendant never did present said order to said Hamilton for acceptance, but fraudulently neglected so to do; and with intent to defraud, harass and injure your petitioner, did, on the 30th day of July, 1855, go before one J. T. Graves, a justice of the peace then acting in the city of Austin, and for the purpose of instituting suit against your petitioner and for the purpose of causing petitioner to be cited by publication to appear before said justice, then and there made oath that your petitioner was at that time absent from this state, or was a transient person, so that the ordinary process of law could not be served upon your petitioner; whereupon the said justice caused your petitioner to be cited by publication in the Texas State Times, a newspaper published in said Travis county. Petitioner alleges that the said order above set forth formed the only cause of action that said Duffau had against your petitioner in said suit; that after publication, such proceedings were had as brought on for trial the said cause before said justice on the 6th day of October, 1855, at which time judgment by default was entered by said justice against your petitioner and in favor of said Duffau, for the sum of $65.22, and for all costs of said suit.

Petitioner alleges, that after the rendition of said judgment, to wit, on the 17th day of October, 1855, execution issued on said judgment; that on the 14th day of November, 1855, said execution was returned unsatisfied; that on the 13th day of November, 1855, an alias execution issued to the sheriff of Wharton county, Texas, and was sent to him, who received the same on the 21st day of November, 1855; and said sheriff, on the 7th day of December, 1855, levied said execution on the interest of your petitioner in and to one-half of east half of a league of land in Wharton county, eight or ten miles below the town of Wharton; said land adjoins the Bingham league on the west, and on the east it adjoins the Castleman league. Petitioner alleges that the sheriff of said county, after notice posted up as required by law, of such sale, offered the said land for sale at public auction on the first Tuesday in January, 1856, and G. W. Hooker being the highest and best bidder therefor, the same was struck off to him; and the said sheriff, R. E. Davis, made, executed and delivered to said Hooker a deed therefor; he, the said Hooker, paying therefor the sum of $150; and petitioner alleges that for aught he knows to the contrary, and he therefore charges that said Hooker is an innocent purchaser, and can hold the land as against petitioner. Petitioner alleges that he was the owner of one-half of the land so as aforesaid levied upon and sold, and that there were 1,107 acres, and that the same is and was at the date of the sale aforesaid of the value of five dollars per acre, and that he is deprived thereof by reason of the judgment and sale aforesaid, and that the said interest which he had and held was reasonably worth the sum of ten thousand dollars, and that he has been damaged in that amount; all of which matters will more fully appear on inspection of the proceedings in the said justice's court, the papers, executions, judgment and sheriff's deed to said land; to all of which petitioner begs leave to refer upon the trial of this cause, to show more fully.

Petitioner alleges that said Duffau fraudulently and with intent to defraud your petitioner, commenced said suit against your petitioner without presenting said order to said Hamilton for acceptance; and that after the commencement of said suit before the said Justice Graves, the said M. C. Hamilton, who was still your petitioner's agent, ascertained that said Duffau had brought suit upon said order; that thereupon said Hamilton applied to said Duffau, and requested him to discontinue said suit which he had instituted against your petitioner before said justice, and let the amount be paid as was agreed; whereupon said Duffau faithfully undertook and promised so to do, and to cause all proceedings to be stopped and the same discontinued; said Hamilton then assuring said Duffau that he should defend the said cause unless he would discontinue the same.

Petitioner alleges that after said order had been drawn upon said Hamilton, he, said Hamilton, called upon said Duffau to present said order, and he would accept the same in accordance with the understanding; that he so called upon said Duffau both before and after the commencement of the suit before said justice, and said Duffau promised and agreed so to do, but never did, but wholly neglected and refused so to do. Petitioner further alleges that matters stood in this manner for a few days, when said Hamilton ascertained that the said suit had not been discontinued; and thereupon said Hamilton, on behalf of petitioner, again applied to said Duffau to have the said suit dismissed; whereupon said Duffau assured said Hamilton that he had forgotten to have the same done, but that he, said Duffau, would go immediately to said justice and have the said suit dismissed, and would give it immediate attention. Petitioner alleges that his said agent, relying upon the faithful promises of the said Duffau in the premises, and believing that said Duffau would dismiss said suit,...