Willis v. Hudson

• Citation: 63 Tex. 678
• Decision Date: 27 March 1885
• Docket Number: Case No. 1828.
• Court: Texas Supreme Court
• Parties: P. J. WILLIS & BRO. v. THOS. F. HUDSON, JR.

63 Tex. 678

P. J. WILLIS & BRO.

v.THOS. F. HUDSON, JR.

Case No. 1828.

Supreme Court of Texas.

Mar. 27, 1885.

APPEAL from Burleson. Tried below before the Hon. I. B. McFarland.

Thos. F. Hudson, Jr., sued P. J. Willis & Bro. and Sam. G. Wilson, alleging that Thos. F. Hudson, Jr., on December 2, 1882, was the owner, and was in the quiet and peaceable possession of a stock of goods in the town of Caldwell, of the value of $4,500; that on the 2d of December, 1882, Willis & Bro. and Sam. G. Wilson seized the property and took it away, and converted the same to their own use--to plaintiff's damage $5,000; that in making said seizure, Wilson was instigated by his co-defendants, Willis & Bro., “who wantonly caused said seizure and conversion with intent to harass, injure and oppress Thos. F. Hudson, Jr.;” and further, that at the time Thos. F. Hudson, Jr., was a merchant in good standing and credit; that the property seized constituted his entire stock in trade, and that Willis & Bro. well knew this and caused the seizure to be made for the purpose of harassing Thos. F. Hudson, Jr., and to ruin his credit, etc., and that said acts did injure Hudson's credit and ruined his business, to his damage $25,000.

The defendants answered by a “general demurrer” and a “general denial.” The jury rendered a verdict in favor of plaintiff, and assessed all damages against P. J. Willis & Bro., $4,046 actual damages, and $5,000 exemplary damages, and judgment was entered against P. J. Willis & Bro. for said amounts, and in favor of Sam. G. Wilson against the plaintiff for his costs.

The court charged as follows: “The plaintiff's title and possession will be sufficient to maintain this suit, if it appears from the evidence that the goods had been bought and that the business was conducted in his name at the time of the levy.”

The plaintiff in his petition alleged that he was the owner of the property seized and converted, and that the property seized (under execution against Thos. F. Hudson & Son) constituted his entire stock in trade. Plaintiff introduced evidence to show the truth of these allegations, and defendants introduced evidence to show that the property seized belonged to the father and brother of plaintiff (against whom they levied the execution), and that the business conducted with the property was under the name of Thos. F. Hudson, Jr., but was in fact the business of Thos. F. Hudson, Sr., and John A. Hudson, and was not, therefore, the business of Thos. F. Hudson, Jr., as he claimed.

Defendants had pleaded a general denial of all the allegations of plaintiff's petition. The record is quite lengthy, but it is believed the opinion will be understood without a review of the lengthy case.

McLemore & Campbell, for appellants, that the charge which assumed that plaintiff might recover if the goods were bought and the business conducted in plaintiff's name without reference to the true ownership, was erroneous, cited: Mims v. Mitchell, 1 Tex., 447;Caldwell v. Haley, 3 Tex., 319;Carter v. Wallace, 2 Tex., 207;Guess v. Lubbock, 5 Tex., 535;Tisdale v. Mitchell, 12 Tex., 68, 70;McGehee v. Shafer, 9 Tex., 20;Boynton v. Tidwell, 19 Tex., 118; H. & T. C. R'y Co. v. Harn, 44 Tex., 628; Rules District Court Texas, No. 7; Freiset v. Caleb, 21 Cal., 71; 22 Cal., 164;Davis v. Warfield, 38 Ind., 461;Kenedy v. Shaw, 38 Ind., 474;Sparks v. Heritage, 45 Ind., 66;Thompson v. Swatzer, 43 Ind., 312;Rotan v. Fletcher, 15 Johns., 208;Schermerhorn v. Van Valkenburg, 11 Johns., 529; 6 Duer, 256; 14 Barb., 536;3 N. Y., 510;44 Am. Rep., 44;Stearns v. Vincent, 50 Mich., 209; Bliss on Code Pleading, §§ 328, 333, 382; Green's Texas Pleading and Practice, §§ 100-779 and authorities; Greenleaf on Ev., § 648; Gould's Pleadings, §§ 306-8, 325, 334 et seq.; 1 Smith's Leading Cases, 490-559; Sutherland on Damages, vol. 3, 524-528.

G. E. Mann, also for appellants, that considering the state of the pleading, the plaintiff could not recover without showing ownership in himself, cited: Wallace v. Finberg, 46 Tex., 46;Hildebrant v. Booth, 7 Tex., 501;Porter v. Miller, 7 Tex., 479;I. & G. N. R. R. Co. v. Benitos, 59 Tex., 329;McCamant v. Batsell, 59 Tex., 371;Sanborn v. Hamilton, 18 Vt., 592;Reed v. Lucas, 42 Tex., 533; Green v. Barney, 20 Am. Dec., 315; Clark v. Foxcroft, 20 Am. Dec., 315; 6 Greenl., 296; Langford v. Owsley, 2 Bibb, 215;S. C., 4 Am. Dec., 700;Peoria R. R. Co. v. Bryant, 57 Ill., 479.

He also cited against the charge of the court: Cook v. Howard, 13 Johns., 277, 283; Schermerhorn v. Van Valkenburg, 11 Johns., 527, top p. 528; Barwick v. Barwick, 11 Ired. Law (N. C.), 80 to 84; Brady v. Whitney, 24 Mich., 155;Stephenson v. Little, 10 Mich., 439;Davidson v. Waldron, 31 Ill., 129; Sylvester v. Girod, 4 Rawle (Pa.), 189, 190; 3 Starkie on Ev., 1504; Bacon's Abridgment, title Trover, 706 and 702; Boynton v. Tidwell, 19 Tex., 121;Pridgin v. Strickland, 8 Tex., 434;Porter v. Miller, 7 Tex., 468;G., C. & S. F. R. R. Co. v. Levy, 59 Tex., 547;Hogan v. Kellum, 13 Tex., 399, 400.

Sayles & Bassett, W. K. Homan and Hume & Shepard, for appellee, that the ownership of the goods in another could only have been shown by appellant after plea in confession and avoidance, which was not pleaded, cited: Carter v. Wallace, 2 Tex., 206-208;Guess v. Lubbock, 5 Tex., 536, 538, 539;Love v. McIntyre, 3 Tex., 10, 12; 1 Waterman on Trespass, sec. 584 et seq.; Abbott's Trial Ev., p. 631, sec. 8; 2 Greenl. Ev., secs. 613, 633, 625, 629, 634; 1 Chitty, Pl., 560; 2 Id., 713;Ullman v. Barnard, 7 Gray, 554;Lyle v. Barnard, 5 Binn., 457;Spoor v. Holland, 8 Wend., 445;Ingersoll v. Von Bokkelin, 7 Cow., 670; Adams v. O'Connor, 100 Mass., 545; White v. Webb, 15 Conn., 302.

They cited other authorities on propositions not noticed in the opinion.

WILLIE, CHIEF JUSTICE.

Much discussion has been had by counsel as to what defenses are admissible under the general issue in the various common law forms of action appropriate to the state of case made by the plaintiff's petition.

We deem it unnecessary to enter into an examination of the principles governing the pleadings used in such actions, or the character of evidence admissible under each of them.

We have abolished all common law forms of action, and under our system a plaintiff states the very case upon which he seeks to recover, and a general denial puts him upon proof of at least every affirmative allegation necessary to maintain his suit unless it be some allegation that by the rules of pleading must be met by a plea in abatement. Tisdale v. Mitchell, 12 Tex., 70;Texas Trans. Co. v. Hyatt, 54 Tex., 215;Porter v. Miller, 7 Tex., 473;Pridgin v. Strickland, 8 Tex., 434.

The defendant, in pleading to the action, looks to the petition--not to see whether it is trespass, trover or case, but to ascertain what are the facts he is expected to meet; what he must disprove under the general denial or confess and avoid under a special answer.

The present petition makes out a case where a merchant, who was owner and in possession of a stock of goods, and doing business with them, had been injured by an illegal seizure and conversion of his goods, and claimed damages, actual and vindictive, for the wrong done him. He sued P. J. Willis & Bro., together with Wilson, for the illegal seizure and conversion; claimed that Willis & Bro. instigated Wilson to make the seizure, and were actuated by malice, etc., against him in so doing, and that they had injured his credit and ruined his business as a merchant.

This is the case the appellants had to meet, and if established by prima facie evidence on the part of the plaintiff, they could not successfully meet it except by disproving some of the material allegations of the petition; or by confessing them and justifying the supposed wrongs laid to their charge. If they relied on the inability of the plaintiff to prove any of these allegations, or upon their own ability to disprove one or more of them, the general denial was all they needed. For instance, if the ownership of the goods was a material issue between the parties, there was no necessity for a special denial of that fact, for such a plea would be included within the general denial of all material allegations. Herndon v. Ennis, 18 Tex., 412. They could not attack the general ownership by a confession and avoidance, for when the fact was admitted by this plea that question was at an end. If they wished to show that, whilst the plaintiff was owner as to every one else, he was not as to themselves, they should confess this general ownership and show in avoidance the circumstances which made it void as to them. For instance, if the defendants proposed to show that the plaintiff's title to the goods was derived by a conveyance from Hudson, Sr., or Hudson & Son, fraudulent as to themselves and other creditors, they must confess the ownership so far as it could be given by the conveyance, but allege its invalidity as to them because of its being fraudulent as to creditors. For such a conveyance is good between the grantor and grantee, and void only as to the parties defrauded, or intended to be defrauded, by it.

The defendants did not, in this case, rely upon any fraudulent conveyance of the goods to show that the plaintiff was not the owner as against their right to levy upon them for the debts of his grantor; but they claimed that the goods did not belong to plaintiff as against any one, or in any sense whatever. It is clear that no special plea, nor any plea in confession and avoidance, was necessary or even proper to raise the issue of ownership under these circumstances, or to authorize evidence on either side of that issue.

The only question, then,...