Traweek v. Martin-Brown Co.

• Decision Date: 31 October 1890
• Citation: 14 S.W. 564
• Parties: TRAWEEK v. MARTIN-BROWN CO.
• Court: Texas Supreme Court

14 S.W. 564

TRAWEEK v. MARTIN-BROWN CO.

Supreme Court of Texas.

October 31, 1890.

Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Ball & Ball, for appellant. Stanley, Spoonts & Meek, for appellee.

GAINES, J.

Appellant was a retail merchant, and having become indebted to appellee, a mercantile corporation, it brought suit against him, and caused an attachment to issue against his property. The ground of the attachment was that the defendant had disposed of his property in whole or in part with intent to defraud his creditors. The defendant filed in the suit a plea in reconvention, claiming damages, actual and exemplary, for the wrongful and malicious suing out of the writ. A demurrer to this plea was sustained, and final judgment rendered for the plaintiff for its debt. The appellant complains that the court erred in sustaining the demurrer to his plea in reconvention. The following summary of the allegations in that plea is taken from appellant's brief: "(1) That at the date of said levy he was a solvent merchant of good reputation and credit. (2) That his said reputation and credit as such merchant was of great pecuniary value to him in enabling him to carry on his business. (3) That plaintiff knowingly and maliciously, and without probable cause, and with the intent to destroy his credit and standing as a merchant, and his reputation as a man, and to oppress and harass him, made an affidavit in attachment, charging him with having disposed of his property with intent to defraud his creditors, and caused the writs in question to be levied on his real estate. (4) That said levy produced all the results which were contemplated and intended by plaintiff, viz.: It destroyed his credit and standing as a merchant; injured and destroyed his business; prevented him from selling or disposing of his said real estate; and alarmed his other creditors, causing them to press their claims by suits and attachments. (5) That he lost and was damaged $1,000 by being prevented from selling his real estate. (6) That he lost $5,000 by reason of the impairment of his credit and his business, and the injury to his feelings. (7) That said levy was excessive, and was partly on exempt property. (8) That all the malicious acts of the agent of plaintiff corporation in suing out and causing the levy of said writs were ratified and adopted by it, with full knowledge of the original malice and intent to injure. (9) He prays judgment for actual damage on account of his being prevented from selling his real estate, the injury to his business and credit, the injury to his feelings, and exemplary damages on account of the malice of plaintiff." The plea does not allege that there was any levy upon personal property. Therefore, the first question for our determination is whether, in an action for the wrongful and malicious suing out of an attachment, an ordinary levy upon real estate will authorize a recovery either of actual or exemplary damages. We are of opinion that the question must be answered in the negative. As we understand it, it is not for the mere issuing of the attachment that damages in any case are given. When the facts do not exist which warrant the writ, and the property of the defendant is seized, all loss directly and proximately resulting to him from the seizure of the defendant's property is recoverable as actual damages. Such damages are confined to the depreciation or loss to the owner of the goods seized, and to the loss resulting from the sacrifice at a forced sale. This was the rule laid down in Wallace v. Finberg, 46 Tex. 35, and has ever since been rigidly adhered to in this court. A levy upon real...