Wallace & Co. v. Finberg

• Decision Date: 01 January 1876
• Citation: 46 Tex. 35
• Parties: WALLACE & CO. v. A. & L. FINBERG.
• Court: Texas Supreme Court

46 Tex. 35

WALLACE & CO.

v.A. & L. FINBERG.

Supreme Court of Texas.

1876.

APPEAL from Anderson. Tried below before the Hon. M. H. Bonner.

The facts will be found carefully stated in the opinion.

J. J. Ward & R. M. McClure, for appellants.

1. The pleadings of both defendants show they recognized the goods attached as the property of Mrs. L. Finberg, and the jury so returned in their verdict. A. Finberg had no interest in the goods or in this sale, and could not have been damaged. (Reid v. Samuels, 22 Tex., 115; 2 Greenl. Ev., §§ 453, 454.) The 6th and 9th errors are included.

2. The answer of L. Finberg set up a foreign judgment, and made the same a part of the answer. The judgment shows it could have had no force in Louisiana, and could have none here. There was no service, either personal or otherwise, on defendant A. Finberg. (Webster v. Reid, 11 How., 460;Nations v. Johnson, 24 How., 201;M'Elmoyle v. Cohen, 13 Pet., 329.) The “Dation in Paiment” was merged in the proceedings and judgment.

3. The defendant is not allowed to traverse the affidavit of plaintiff for an attachment. (Cloud v. Smith, 1 Tex., 613; 1 Greenl. Ev., § 341.)

4. The intimate relations of the defendants require indisputable evidence of good faith, and in its absence notice is presumed to L. Finberg. (Castro v. Illies, 22 Tex., 502, 503, 504;Gibson v. Hill, 23 Tex., 82;Belt v. Raguet, 27 Tex., 478.) Public policy forbids her testifying in this cause. (1 Greenl. Ev., §§ 340, 341; 1 Phil. Ev., 77, 78; 2 Kent, 179.) 13th error: There was no service on the defendant A. Finberg. (Webster v. Reid, 11 How., 460;Nations v. Johnson, 24 How., 201.)

5. The “Dation in Paiment” was merged in the proceedings and judgment, and the certificates to the same were given after record, and were never duly registered. (Whitehead v. Foley, 28 Tex., 288.) Neither could it have any force in Texas. (McIntyre v. Chappell, 4 Tex., 187;Hall v. Harris, 11 Tex., 300.)

6. The defendants were married in South Carolina. At the time of marriage all property of the wife became the property of the husband; his removing to Louisiana or Texas could not change it, (Hall v. Harris, 11 Tex., 300,) and therefore the judgment and “Dation in Paiment” were of no force.

7. Was the conveyance to Harris & Fox fraudulent? If not, was it ever explained? If fraudulent or not explained, the plaintiffs were entitled to their writ of attachment, and no damages could be assessed against them. Was it fraudulent? Finberg continued in possession of the goods, and to sell the same. (1 Tex., 415;14 Tex., 592;24 Tex., 517, 518, 519, 624;28 Tex., 73;23 Tex., 62, 82;10 Tex., 397; 1 Smith's Lead. Cases, 33.)

No explanation given before suit or after. (18 Tex., 658;27 Tex., 145; 1 Story's Eq., secs. 246, 247; 15 Tex., 224;1 Tex., 337, 423.)

Was there an adequate consideration? The instrument values the goods at $6,000, Finberg says $7,000, to pay or secure $1,200, to the exclusion of his numerous other creditors. Finberg bought goods in market on time. So soon as he gets them in hand his wife claims them as her own, and with her husband conveys $6,000 or $7,000 worth of goods to pay or secure $1,200. Consider he only pays to his creditors after the conveyance less than $400. He continues in possession of the goods, and to sell the same; he has no other property. The jury gave damages to both the defendants. The court had excluded the plea of L. Finberg for damages, and there could be no proof for her. (35 Tex., 6, 7.) If there were damages, it was a legal consequence of their illegal act.

8. The court failed to render a judgment in accordance with the verdict. (5 Tex., 471;35 Tex., 6, 7;18 Tex., 68.)

9. The judgment does not state that the jury were qualified as required by law.

T. T. Gammage, for appellee.--The plaintiff in attachment suits is required by statute to file his bond payable to the defendant, &c., conditioned to pay damages, &c. (Paschal's Dig., art. 143.)

If the attachment be wrongfully sued out, the plaintiff is liable to such actual damages as defendant may have sustained by such wrongful act. (Punchard v. Taylor, 23 Tex., 427;Reed v. Samuels, 22 Tex., 115.)

One of several defendants may recover damages and the other not. (Punchard v. Taylor, 23 Tex., 424.)

Actual damages may and of right ought to be recovered. (Drake on Attach., sec. 174; Culbertson v. Cabeen, 29 Tex., 255.)

Where fraud, malice, or oppression intervenes, vindictive or exemplary damages will lie. (Sedgwick on Dam., 38; Graham v. Roder, 5 Tex., 149;Smith v. Sherwood, 2 Tex., 463;Cole v. Tucker, 6 Tex., 266.)

An excessive levy is oppressive to defendant and punitary damages may be taxed by the jury. (Monroe v. Watson, 17 Tex., 625.)

The verdict of the jury must be clearly wrong before this court will disturb and set it aside. (Long v. Steiger, 8 Tex., 462;Gamage v. Trawick, 19 Tex., 64;Perry v. Robinson, 2 Tex., 491; see also 19 Tex., 152, 226;15 Tex., 410.)

It is not enough that it is not clear that it is right, or that that there was conflicting evidence. (Briscoe v. Bronaugh, 1 Tex., 340;Edrington v. Kiger, 4 Tex., 93.)

ROBERTS, CHIEF JUSTICE.

On the 19th day of January, A. D. 1874, Wallace & Co. filed a petition on three notes for about $400, signed by A. Finberg and L. Finberg, and sued out an attachment upon the ground that they had transferred their property to defraud their creditors, which was levied upon a large stock of goods on 24th of January, 1874; that L. Finberg is the wife of A. Finberg is not disclosed in the original petition or writ.

At the March Term of the court, 1874, L. Finberg pleaded that she is, and was when the notes were signed, a married woman, the wife of A. Finberg; that they were not given by her authority, nor for the benefit of herself, her children, or her separate estate. This plea was not signed or sworn to.

At the same term A. Finberg pleaded that it is not true that he had transferred his property for the purpose of defrauding his creditors; that the writ of attachment was maliciously and wrongfully sued out and levied upon one thousand dollars' worth of goods, and his business thereby stopped and his credit ruined, which was good before as a merchant, by which he is damaged $10,000. He also pleaded payments of sums not credited. He referred to the bond for attachment in a general way, without setting it out, and asked judgment thereon against plaintiffs and their sureties. (Sureties are not made parties.)

At the same term A. & L. Finberg filed jointly a plea in substance the same as the one by him previously filed, stating that the levy was excessive, &c.

In April afterwards the sheriff applied for and obtained an order to sell the goods levied on, as perishable, and on the 29th of that month sold goods amounting to $879.18; and after deducting $206.80 expenses thereon, there was placed in the hands of the clerk the sum of $672.30. The goods sold appear in the sale bill returned by the sheriff as not being all of the goods levied on.

At the July Term, 1874, the defendants filed a joint answer, in reconvention, for $4,300 damages, for the wrongful and malicious suing out the attachment, stating, that plaintiffs induced the sheriff to levy upon their whole stock of goods, of the said value of $4,300, as shown by the return of the sheriff; that said levy was excessive, being upon the whole of the property owned by them, upon which they depended for a living; that A. Finberg was a merchant, trading on said stock of goods to support himself, wife, and one child; that by the malicious and wrongful suing out of this attachment other creditors were induced also to bring suits and seize upon his said stock; that defendants were unable to replevy the goods, and were thereby thrown out of business to his damage five dollars per day; that they have been deprived of the profits upon the sale of said goods, and by which they have been damaged as claimed as aforesaid.

Afterwards, at the same term, A. Finberg filed an amendment asking that the preceding answer may be considered as an answer filed by him alone, and that the words “A. Finberg” and “defendant” be substituted for the words “A. & L. Finberg” and “defendants,” and prayed further for general relief, and damages, &c.; the effect of which was an effort to place A. Finberg in the attitude of having filed a separate answer claiming damages, in reconvention, without respect to his wife's separate interest in the property attached, and treating the property as community property.

Afterwards, at the same term, L. Finberg filed an amended answer first, and asked leave to withdraw her previous answer, and then filed a general answer, setting up that she is and was a feme covert and not liable to be sued in this action, &c.; also a general denial; also a plea in reconvention for a large amount of damages for the wrongful and malicious suing out the attachment, and as grounds thereof alleged that the whole of the property levied on, of the value of nearly five thousand dollars, was and is her separate property, by reason of a certain deed, styled “Dation in Paiment,” executed, and a judgment thereon rendered in the State of Louisiana, giving her a lien upon the future acquisitions of her husband for about $1,500, which was alleged to be duly recorded in the clerk's office of the county of Anderson, and by which plaintiffs had notice before the levy of said attachment that the goods levied on were the separate property of the defendant L. Finberg, by said record, as well as by actual notice given by her at the time the writ was levied; that said levy was excessive; that the goods were damaged and out of style by being shut up, and the price of them had fallen from not being sold when there was money in the country to buy them; that she lost profits in sales amounting to two and one half dollars per day, and again twenty-five dollars per day; that she had to employ lawyers, whose fees were worth $300, and she denies that she...