Tucker v. Hamlin

• Decision Date: 16 October 1883
• Docket Number: Case No. 1408-4497.
• Citation: 60 Tex. 171
• Parties: J. M. TUCKER ET AL. v. JAMES A. HAMLIN.
• Court: Texas Supreme Court

60 Tex. 171

J. M. TUCKER ET AL.

v.JAMES A. HAMLIN.

Case No. 1408-4497.

Supreme Court of Texas.

Oct. 16, 1883.

APPEAL from Williamson. Tried below before the Hon. W. A. Blackburn.

Suit by the appellee against appellants for damages for the seizure and conversion of a stock of liquors valued at $1,005.96, and claimed by defendant as his property. The petition contained allegations of malice on the part of the defendants in the seizure and conversion of the property, and prayed for actual and exemplary damages amounting to $3,125.69. To this petition the defendants answered, admitting the seizure of the property, and alleging that Tucker, as sheriff of Williamson county, under the direction of the other defendants, had levied upon the property by virtue of an attachment issued out of the county court of Williamson county on the 4th day of April, 1881, in favor of the defendants against one J. A. Scott, for the sum of $463.62. They denied that the appellee was the owner of the goods, and alleged them to be the property of Scott, against whom they had a judgment for $563.62, and charged that appellee's claim to the goods was not genuine; that Scott had transferred them to appellee for the purpose of defrauding his creditors, and that appellee had notice of the fraudulent intent on the part of Scott, and aided and assisted him in perpetrating the fraud.

The court permitted the witness A. S. Fisher to relate to the jury the substance of conversations held by him at different times with J. A. Scott, the appellee J. A. Hamlin, and one R. W. Hill, in the absence of the defendants. Said conversations related to and were intended to explain the transaction and sale charged by defendants to have been fraudulent. To the admission of this evidence the defendants objected.

The court permitted the appellee Hamlin and the witnesses Crosby and Freeman, over the objections of the defendants, to testify to the value of liquors when sold by the drink over the counter of a saloon or bar-room in Georgetown, Texas, for the purpose of fixing the measure of damages. To this defendants excepted.

The court in its charge failed to instruct the jury that a knowledge of such facts by Hamlin of the fraudulent intention of Scott in making the sale as were calculated to arouse suspicion in his mind as to the intention of Scott, and put him upon inquiry, would be sufficient to affect him with notice of the fraudulent intention of his vendor, Scott, though asked by the defendant so to charge.

The court refused to give instructions numbers 1 and 2, asked by the defendants. They were as follows:

No. 1. “If you believe, from the evidence, that at the date of the sale of the goods by Scott to Hamlin, Scott was indebted to other parties, and that he was insolvent, and that he made said sale for the purpose of hindering, delaying or defrauding his creditors, and that Hamlin knew of such fraudulent intent on the part of said Scott, or was in possession of such facts as should have put him upon inquiry as to the intention and condition of said Scott, and that he could have ascertained the same by the use of ordinary diligence, then such sale would be null and void as to other creditors of Scott, notwithstanding Hamlin may have paid full value for said goods, and you will find for the defendants so far as the goods conveyed by said sale are concerned.”

No. 2. “If you find, from the evidence, that the goods levied upon and sold under the order of sale in favor of Bertram & Moeller v. Scott were at the date of the levy the property of Hamlin, you will find a verdict for the plaintiff, and assess his damages at the market value of said goods in the quantities described in the petition, in Georgetown, at the date of said levy, with interest thereon at eight per cent. per annum from said date.”

Hamlin knew that Scott was in debt to various parties, and that he had tried to sell his stock of goods at a sacrifice.

The witnesses Jordan and Junck, who were the only witnesses examined as to the true market value of the property, testified as follows: Jordan said it was worth $602.89; Junck said it was worth $442.69. The jury assessed its value at $750.

The verdict was for appellee for $792.50.

The assignments of error were:

First. The court erred in permitting the witness A. S. Fisher to testify, over objections, to conversations had between said witness and J. A. Scott, J. A. Hamlin and R. W. Hill, not in presence of defendants.

Second. The court erred in permitting the witnesses Hamlin, Crosby and Freeman, over objections of defendants, to testify to the retail price of liquors sold over the counter of a bar-room at Georgetown, because the evidence was irrelevant and incompetent, for reasons stated in bill of exceptions No. 2.

Third. The court erred in its charge to the jury, in paragraph No. 2, page No. 5, of the charge, where the court attempts to instruct the jury what evidence would be sufficient to establish the fraudulent character of the sale of goods by Scott to Hamlin, so far as Hamlin was concerned.

Fourth. The court erred in refusing charges Nos. 1, 2, 3, 4 and 5, asked by defendants, to which reference is here made.

Fifth. The court erred in overruling defendants' motion for a new trial for the several reasons stated thereinMakemson, Fisher & Price and Walter Acker, for appellee, cited: Wright v. Linn, 16 Tex., 34;Stadtler v. Wood, 24 Tex., 622;Norton v. Mallory, 63 N. Y., 434;Goodgame v. Col, 12 Ala., 77, 78;Fisher v. True, 38 Me., 535;Bailey v. Mills, 27 Tex., 434;McQuinnay v. Hitchcock, 8 Tex., 33;Moseley v. Gainer, 10 Tex., 393;Frazer v. Thatcher, 49 Tex., 26.

Geo. F. Pendexter and Jas. H. Robertson, for appellant, cited on admitting improper evidence: 1 Greenl. on Ev., secs. 197-199; Moore v. Aldrich, 25 Tex. Sup., 276; Ingram v. Rankin, 32 Am. Rep., 762;Harris v. Finberg, 46 Tex., 79; 2 Sedgwick on Dam., 382, 532.

On fraud they cited: Humphries v. Freeman, 22 Tex., 45; Moore v. Aldrich, 25 Tex. Sup., 280; Woolsey v. McMahan, 46 Tex., 63;Thurmond v. Trammell, 22 Tex., 257; and Eborn v. Zimpleman, 47 Tex., 504.

WILLIE, CHIEF JUSTICE.

This was a suit by the appellee against J. M. Tucker, sheriff of Williamson county, and his co-defendants to recover damages for the alleged unlawful seizure and conversion of a stock of liquors and other articles claimed by the appellee to be his property. One of the issues for the jury to determine was the amount of damages the plaintiff below was entitled to recover in case he succeeded in the action. The measure of such...