Tynberg v. Cohen

• Decision Date: 04 March 1890
• Citation: 13 S.W. 315
• Court: Texas Supreme Court
• Parties: TYNBERG <I>et al.</I> <I>v.</I> COHEN <I>et al.</I>

13 S.W. 315

TYNBERG et al.v.

COHEN et al.

Supreme Court of Texas.

March 4, 1890.

Appeal from district court, Washington county; J. B. McFARLAND, Judge.

Action by Isaac and Herman Cohen against M. A. Tynberg & Co., Ed Newbower, and Charles Wenar, for malicious attachment. Plaintiffs obtained judgment. Defendants appeal.

Bassett, Muse & Muse, and J. T. Swearingen, for appellants. Seth Shepard, F. Chas. Hume, and C. R. Breedlove, for appellees.

STAYTON, C. J.

This cause was before this court at a former term, and is reported in 67 Tex. 220, 2 S. W. Rep. 734, where will be found a statement of the case. On the trial from which that appeal was taken, a plea in abatement, based on the non-joinder of Eliza Cohen, who was claimed to be a co-partner with Isaac and Herman Cohen, was filed, tried, and decided against appellants. It was then urged that the plea in abatement should have been tried before the cause was tried; but it was held that this was a matter within the discretion of the court, and, further, that her relation to Isaac and Herman Cohen was such as to make the judgment to be rendered in the cause binding on her.

On the last trial the court again submitted the plea in abatement with the main issue, and declined to require a separate finding on that. This is assigned as error. If, on the first trial, the plea in abatement had been tried before the cause was tried on its merits, and decided against appellants, it would not have been their right to have that tried again, unless on appeal some error had been found in that proceeding. That on the former trial the plea in abatement was submitted with the merits does not affect the question. When once tried, and decided adversely to a defendant, he is not entitled to have a plea in abatement tried again, though on appeal the judgment may be reversed on some ground not affecting the decision on the plea in abatement. The purpose of the plea in abatement was to have a decision whether the proper plaintiffs were before the court. It in no way affected the merits of the controversy; and a practice which would lead to a resubmission of a plea in abatement every time a new trial on the merits was granted, or every time a cause was tried after an appeal, and reversal on the merits, would lead to interminable confusion. We are of opinion that the court would not have erred, had it declined on the last trial to submit any issue on the plea in abatement, and the manner of its submission. It having been decided against appellants is an immaterial question.

There was a verdict for $150 against principal and sureties on the attachment bond as actual damages, and also a verdict against the surety, who acted as agent in suing out the writ, for $10,000 as exemplary damages. It is urged that both are excessive. The jury evidently found that the writ was wrongfully sued out, but that the principals and one of the sureties were not actuated by malice or evil motive in doing this. The question then, arises, whether the evidence justified a finding that appellees had suffered actual damages to the extent of $150, for none other could be imposed for the mere wrongful use of the writ. The goods seized were a part of a stock of goods in the second floor of appellees' business house, valued by the sheriff at $900, but by appellees at $1,800. The business of appellees is not shown to have been in any manner interfered with by the sheriff, while engaged in making this levy upon but a small part of the stock of goods. The sheriff remained in possession of the goods about three hours. During the time, he was engaged in making an inventory, and packing the goods in trunks, at the expiration of which they were replevied. The goods are not shown to have been injured in any respect, nor is there any evidence that a single sale was lost or interfered with by the sheriff's possession. The goods were not removed from the store. The actual damages resulting from these facts must have been very small. One of appellees testified, over objection, that the levy "interfered with our business, of course. We were all broke up. The levy affected us in this way: People who had dealt with us went somewhere else to trade after the levy, to the extent of fifty or sixty dollars per day from immediately after the levy until now." A levy upon an insignificant part of a merchant's goods could not be said to be the proximate cause of such a loss of trade; and, if the jury considered this, or the general expressions of the witness quoted, in making an estimate of the actual damages, they erred.

He further stated: "We had ordered nine hundred dollars' worth of shoes of Claflin & Thayer, Boston. One Harrison had agreed to take one-half of this bill. The order was not filled. * * * Harrison was to take half of the Claflin & Thayer bill. He was to pay cash, with 10 per cent. added to cost in the store. This sale had been made a week or more prior to the levy." Other evidence shows that Claflin & Thayer declined to ship those goods because they saw in a Boston paper an announcement of the failure of appellees, with the publication of which appellants are not shown to have had any connection, except in so far as the levy of attachment may have given ground for such a report. If it be conceded that the loss of this sale could be considered as actual damages, it would only amount to about $45, with interest; but it would be difficult to hold that the levy was the proximate cause of this loss. Too many independent agencies intervened between the levy and loss. The casual connection was broken. Some person doubtless sent the report to Boston. Some person gave it to the publisher, and he published it; and, in doing this, some or all of them made a false statement, if there be any truth in the evidence found in the record. It cannot be presumed, in the absence of proof, that those things were done by appellees, or any of them. The evidence tends to show that Claflin & Thayer would have shipped the goods but for the announcement seen by them. He further stated: "We had given an order for goods to E. S. Jaffray & Co., New York. The goods were shipped, and arrived the day before...