Willis v. Hudson

• Decision Date: 05 February 1889
• Citation: 10 S.W. 713
• Parties: WILLIS <I>et al.</I> <I>v.</I> HUDSON.
• Court: Texas Supreme Court

10 S.W. 713

WILLIS et al.

v. HUDSON.

Supreme Court of Texas.

February 5, 1889.

Appeal from district court, Brazos county.

Action by Thomas F. Hudson, Jr., against P. J. Willis and another, partners trading as P. J. Willis & Bro., and S. G. Wilson, to recover for the conversion of certain personal property. Verdict and judgment for plaintiff, and defendants Willis & Bro. appeal; the action having been dismissed as to Wilson.

G. E. Mann and McLemore & Campbell, for appellants. W. K. Homan, Sayles & Bassett, and Seth Shepard, for appellee.

STAYTON, C. J.

This action was brought by appellee against appellants and S. G. Wilson, to recover damages for an alleged seizure and conversion by them of a stock of goods which he alleged he owned and possessed at the time they were taken by the defendants. The cause was before this court at a former term, when a judgment obtained by appellee was reversed, and the cause remanded. 63 Tex. 678. The action was originally instituted in Burleson county, where the defendant Wilson resided, appellants being residents of Galveston county. After the cause was remanded, the venue was changed, on motion of defendants, to Brazos county, and after this was done appellee dismissed his action as to Wilson. Appellants then, by exception, presented the question of their right then to be sued only in the county of their residence, which was shown by the petition, but this was overruled. They further claimed that the dismissal as to Wilson made the cause of action set up against all a new cause of action, and interposed, by exception, the defense of limitation, which was also overruled. They also pleaded "not guilty," and on this plea went to trial before a jury, who returned a verdict against them, on which the judgment appealed from was entered.

In the course of the trial the following facts appeared, in reference to which there was no controversy:

(1) That on January 1, 1881, Thomas F. Hudson, Sr., and his son John A. Hudson, who composed the firm of Thomas F. Hudson & Son, made an assignment, under the statute, for the benefit of such of their creditors only as would accept under it, and release them.

(2) On March 7, 1881, P. J. Willis & Bro. recovered a judgment for $43,973.11 against Thomas F. Hudson & Son.

(3) On May 3, 1881, they accepted under the assignment, and agreed to execute a release; and under this, on or before October 8, 1881, they received the sum of $8,452.17, for which they gave the following receipt and release:

"$8,452.17. Received from C. E. Wynne, assignee of the estate of Thos. F. Hudson & Son, and Thos. F. Hudson, and John A. Hudson, the sum of eight thousand four hundred and fifty-two and 17-100 dollars, in full payment and discharge of all claims and demand against the said Thos. F. Hudson & Son, and against the said Thos. F. Hudson and John A. Hudson. In witness whereof we have hereunto signed our names at Galveston, Texas, this 8th day of October, 1881.

                      [Signed]                            P. J. WILLIS & BRO."
                

(4) On November 29, 1882, P. J. Willis & Bro. caused an execution to be issued against Thomas F. Hudson & Son on the judgment recovered by them on March 7, 1881, which, at their request, was levied upon the goods claimed by appellee, and for the conversion of which this action was brought.

(5) The levy was made by Wilson, sheriff of Burleson county, who was originally made a defendant, and after the sale of the goods the proceeds were paid to P. J. Willis & Bro.

(6) At the time Hudson & Son made the assignment they were the owners of a stock of goods, and these were sold by the assignee, and bought by Kauffman & Runge, who for a time conducted the business through Thomas F. Hudson, Sr., and his son, as agents; under an agreement, however, that Kauffman & Runge would reconvey the stock to Thomas F. Hudson, Sr., and John A. Hudson, upon payment by them of the sum bid by Kauffman & Runge.

(7) Under this agreement the goods again became the property of Hudson & Son, in January, 1882. There may be some controversy, however, whether the purchase of the goods by Kauffman & Runge may not have been for and under an agreement with Hudson & Son.

(8) Hudson & Son conveyed to Thomas F. Hudson, Jr., the appellee, that stock of goods by an instrument of writing as follows:

                                                       "ROCKDALE, TEX., Jan. 26, 1882
                

"For and in consideration of the sum of two thousand ($2,000) dollars to us in hand paid, and also in consideration of one promissory note of even date with this, for the sum of twenty-four thousand five hundred and sixteen dollars and fifty-two cents, ($24,516.52,) due twelve months after date, the sum being paid and given by Thos. F. Hudson, Jr., we hereby transfer to him all our stock of general merchandise, together with all notes and book-accounts due us, and all judgments in our favor.

                      [Signed]                              "THOS. F. HUDSON & SON."
                

Appellee took that stock of goods to Fort Worth, where he established a large business in his own name with it, and additions thereto purchased in his own name, both for cash and on credit. From the stock of goods thus built up the goods for the conversion of which this action was brought were taken, and a business opened in Burleson county in the name of Thomas F. Hudson, Jr.

The theory of appellants' defense was that the entire business done in the name of Thomas F. Hudson, Jr., and having its inception with the purchase evidenced by the bill of sale of January 26, 1882, was the business of Thomas F. Hudson, or of himself and his son John A., and that all the goods held in the name of Thomas F. Hudson, Jr., were in fact the property of Thomas F. Hudson, Sr., or of himself and his son John A., and so held by Thomas F. Hudson, Jr., to place them beyond the reach of their creditors. There was much evidence tending to show that this may have been true, and much tending to show that Thomas F. Hudson, Jr., may have been the lawful owner. Under the charge of the court, the verdict in favor of appellee evidences the fact that the jury found the goods to be the property of appellee, and there is no assignment of error which calls in question the sufficiency of the evidence to sustain the verdict. It is claimed, however, that many of the charges given were erroneous, and calculated to mislead the jury, and that thereby they reached a conclusion they would not otherwise have reached.

The charges given, in so far as objected to, are as follows:

"(3) If you find from the evidence that the plaintiff was the owner of the goods described in the petition; that defendants P. J. Willis & Bro. caused a levy to be made upon the goods, and had them seized by said Wilson by virtue of the execution read in evidence, and converted them, or the proceeds of the same, to their own use, — you will find for the plaintiff actual damages, — that is, the market value of the goods at the time and place of seizure, — and 8 per cent. interest per annum thereon from the date of the seizure to this date; the whole amount, including interest, not to exceed $5,000.

"(4) If you find that plaintiff was holding the goods for Thos. F. Hudson, or for Thos. F. Hudson & Son, or if you find that the plaintiff, Thos. F. Hudson, Jr., was not the actual owner of the goods, he cannot recover under the allegations of his petition; and in such case you will find for the defendants.

"(5) If the goods seized under the execution against Thos. F. Hudson & Son, at Caldwell, were bought by the plaintiff, Thos. F. Hudson, Jr., upon his order, or by other persons for him, upon a credit, or for cash, with the intent on the part of Thomas F. Hudson, Jr., and on the part of the persons from whom the same were purchased, to put the title and right to the property in Thos. F. Hudson, Jr., then he, Thos. F. Hudson, Jr., would be the owner of the same for the purposes of this suit. The transfer of the stock of goods at Rockdale, by Thos. F. Hudson & Son to Thos. F. Hudson, Jr., as shown by the conveyance read in evidence, of date January 26, 1882, if the same was delivered, and if the goods so sold were delivered pursuant to the same to plaintiff, had the effect to vest the title to said stock in the plaintiff, Thos. F. Hudson, Jr., unless it appears from the testimony that it was the intention of the parties to so put the property under cover of a different name, while in truth it was understood to belong to Thos. F. Hudson & Son.

"(6) If the goods levied on by the execution at Caldwell were purchased in the name of plaintiff, upon his order, by the plaintiff himself, or by other persons for him, and were shipped to him, but the evidence shows that in truth Thos. F. Hudson & Son or Thos. F. Hudson were the actual owners of the same, or if it appears from the evidence that the name of Thos. F. Hudson, Jr., was substituted for the firm name of Thos. F. Hudson & Son, and that though the business was conducted under the new name, if it was in fact a continuation of the business of Thos. F. Hudson & Son, and if, in fact, the goods belonged to them, then plaintiff, Thos. F. Hudson, Jr., would not be the owner. If the transfer of the Rockdale stock was not intended by the parties to put the title in plaintiff, but was merely intended, under the semblance of a sale, to put the goods in a different name without changing the ownership, then the transfer would not put the ownership of the name in Thos. F. Hudson, Jr.

"(7) If you find that the plaintiff, Thos. F. Hudson, Jr., purchased the goods levied on, by agent or in person, or upon orders, and it was his intention, and the intention of the parties selling him the goods, to vest in him the title to the same, it makes no difference, and his ownership would not be affected by the fact, if you find that it existed, that he was so made the owner by arrangement with Thos. F. Hudson & Son, to avoid the payment of...