Willis v. McNeill

• Decision Date: 08 October 1882
• Docket Number: Case No. 1285.
• Citation: 57 Tex. 465
• Court: Texas Supreme Court
• Parties: P. J. WILLIS & BRO. v. W. L. MCNEILL.

57 Tex. 465

P. J. WILLIS & BRO.

v.W. L. MCNEILL.

Case No. 1285.

Supreme Court of Texas.

Oct. 8, 1882.

APPEAL from Henderson. Tried below before the Hon. John C. Robertson.

This was an attachment suit instituted by P. J. Willis & Bro., of Galveston, March 8, 1881, on a promissory note for $385.89, dated January 29, 1881, due at ninety days, executed by the defendant W. L. McNeill. The affidavit for the attachment was made by C. L. Coyner, an attorney, acting under a power of attorney from plaintiffs, and it charged that McNeill was “about to convert his property into money for the purpose of placing it beyond the reach of his creditors.” On application of plaintiffs, certain goods levied on by virtue of the writ of attachment on April 4th, were sold by order of the court in July, 1881, for $425.15.

McNeill's answer admitted the justness of the note, but alleged that the attachment had been sued out wrongfully, maliciously and without probable cause; that the plaintiffs caused and procured the issuance and levy of the writ, and in doing so were moved by malicious motives; claiming damages for injury to the goods whilst under seizure, $1,500; also damages to his business, to his credit and standing as a merchant, and claiming as further damages $20,000.

On the trial the evidence showed that McNeill had been in the mercantile business for about eighteen years. In June, 1880, he and N. J. Harrison formed a partnership, which was dissolved in the latter part of January, 1881, by McNeill buying Harrison out, giving or rather promising Harrison $1,000 for his interest, and assuming the firm indebtedness. The firm of McNeill & Harrison was at that time indebted to plaintiffs $1,026. McNeill testified that he had quit trading with plaintiffs for several years; that he did not quit on friendly terms, and that the bill for $1,026 was made after strong solicitations, and was the only one he had made with them since. Late in January, 1881, Field, an agent of plaintiffs, acting under instructions from plaintiffs informing him that McNeill had been sued in Galveston, and that the firm of McNeill & Harrison were in trouble, called to see McNeill, and demanded payment of the $1,026 debt, or that it be secured. He also asked a statement of defendant's assets and liabilities. McNeill told him he could not make a monied payment of $250, and declined to secure the claim, or to make the statement asked for, but testified that he told Field what property he had and that he would pay the debt in twenty days. In the course of their interview it appeared that McNeill was shipping his cotton to St. Louis, and Field testified that McNeill said that he shipped it there because he wanted money. McNeill testified that Field wanted him to ship some cotton to Galveston, to Willis & Bro., to be applied to his account; that it was also more convenient to him to ship to St. Louis; that there was considerable competition between St. Louis and Galveston as cotton markets, and that most of the money realized from shipments to St. Louis was sent to Galveston to pay debts there. Harrison testified that they shipped their cotton to St. Louis because they thought it the best market, and there was other testimony that St. Louis was the better market for lower grades of cotton. After his interview (during which McNeill says there was some feeling between them), Field testified that he got Coyner to examine the records of Henderson county to ascertain the condition of McNeill's property, which examination showed several mortgages on his real estate, of which up to that time witness said he had not heard. Acting under advice from Coyney, he sued out an attachment on the $1,026 debt. This was levied on some cotton, but the matter was arranged by McNeill selling to Coyner, as agent for plaintiff, cotton sufficient to reduce the $1,026 to $385.90, and for that amount McNeill gave the note sued on.

Previous to the institution of this suit two other suits were brought by other parties against defendant, and attachments issued in these suits were settled without levy previous to the levy of the attachment of Willis & Bro. on April 4th. Coyner testified that he sued out the attachment because he honestly thought the facts existed as stated in the affidavit, and that he acted throughout as he was authorized and required by plaintiffs to do. McNeill testified that he had settled all his commercial debts except one of $450, not including his debt to Harrison. He testified to the destruction of his credit by the attachment proceedings, and that previously he had no difficulty in buying on a credit, and did a business of $10,000 a year. At the trial he was still doing a small business, mainly selling the remnant of his old stock. There was evidence tending to support his character for honesty, and there was no evidence tending to show that he was slow in paying, had been to protest, etc. The mortgages of record by McNeill bear date in 1878, 1879, and the last in May, 1880. McNeill testified that at the date of the attachment all the mortgage debts had been paid off except one of $800, though the record failed to show their release.

This statement is but an outline of the case as developed by the evidence, omitting details and matters having more or less bearing on the merits of the case, but not regarded essential to a proper understanding of the opinion, or the questions decided.

The charge of the court, omitting the part devoted to a statement of the case, and some formal directions at the conclusion, was as follows:

“You are the exclusive judges of the facts of this case, to be ascertained from the testimony of the witnesses, and it will be your duty to find for the plaintiffs the amount of the note sued on, and the interest due thereon to this date at ten per cent. per annum; the burden of proof to establish the defendant's plea in reconvention for damages devolves upon the defendant.

If you believe, from the testimony, that the plaintiffs sued out the attachment in this case, and the ground for suing out said attachment was untrue in fact, that is, if they believed that the defendant was not ‘about to convert his property, or any part thereof, into money for the purpose of placing it beyond the reach of his creditors,’ the suing out of said attachment would be in law wrongful, and in such case the plaintiffs would be liable to the defendant for the actual damages sustained by him.

If, besides being untrue, the plaintiffs in suing out the attachment acted maliciously, and without probable cause for believing the ground of the attachment to be true, the plaintiffs are liable, in addition to the actual damages, by way of compensation for injuries to his credit or standing as a merchant, and injury to his business, if any be proven, for vindictive or exemplary damages, and as a punishment for the wrongful and oppressive use of the process of attachment. Malice and the want of probable cause must both concur to support the charge of maliciously suing out the attachment. Neither is alone sufficient. Any unlawful act done willfully and purposely which is to the injury of another, is, as against that person, malicious. Any improper motive constitutes malice; in the sense here used, it does not necessarily imply hatred or ill-will, and may be implied in the want of probable cause; but this implication may be repelled by facts and circumstances indicating a fair and legitimate purpose and honest pursuit of a claim believed to be just.

If you find in the case that the ground on which the attachment was sued out did not in fact exist, and you also find that it was maliciously and without probable cause sued out, and you find that the malice, if there was malice, was the malice of the agent, you cannot impute such malice to P. J. Willis & Bro. by presumption. But if there was a want of probable cause for suing out the attachment, malice may be implied; and if P. J. Willis & Bro. authorized their agent to sue out the attachment, or concurred in it, assented to it, or adopted it, or ratified it after it was done, the law would impute the malice to them. If the plaintiffs authorized or required the agent to sue out this attachment without knowing the cause to exist, they did so at their peril; and in absence of probable cause to believe the ground was true, malice would be imputed to them, unless the proof shows good faith in an honest effort to collect a just debt. In order to decide whether the attachment was wrongfully sued out, you must ascertain whether the defendant McNeill was about to convert his property for the purpose of placing it beyond the reach of his creditors. If he was, he can recover no damages in this suit. If he was not so about to convert his property, he would be entitled to recover as explained in this charge. If the jury believe there was a want of probable cause for suing out this attachment, and you further believe, from the testimony, that the plaintiffs, P. J. Willis & Bro., had not authorized the attachment to be sued out, and they have not concurred in it since, or approved or adopted the acts of their agent, malice would not be implied against them.

Probable cause, as applied to this case, is a belief founded on circumstances sufficiently strong to justify a reasonable man in believing that the grounds for suing out the attachment were true; that is, that McNeill was about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors.

As before instructed, if the ground for suing out the attachment in this case was not true in fact, the suing out of the attachment would be wrongful either sued out by plaintiffs or their agent, and the plaintiffs would be liable to the defendant for the actual damages sustained by him, by reason of the suing out of said attachment and by levying on and seizing the defendant's goods.

In this case the goods having been sold, the...