Younger v. Cleveland

• Decision Date: 27 November 1885
• Docket Number: Case No. 1917.
• Citation: Stansell v. Cleveland, 64 Tex. 660 (Tex. 1885)
• Court: Texas Supreme Court
• Parties: STANSELL & YOUNGER v. W. D. CLEVELAND.

64 Tex. 660

STANSELL & YOUNGER

v.W. D. CLEVELAND.

Case No. 1917.

Supreme Court of Texas.

November 27, 1885.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

The appellants, Stansell & Younger, were retail merchants, having two stores in Navarro county, one at Dawson, the other at Cross Roads. They were indebted to W. D. Cleveland, the appellee, in the sum of $1,993.93, to wit: two notes, dated 1st of February, 1884, one for $937.51, due 1st of June, 1884, the other for $937.52, due 1st of July, 1884; also an open account for $118.60. On the 16th day of March, 1884, before either of the notes became due, W. D. Cleveland sued out a writ of attachment, and had the same levied on the merchandise of both stores of appellants, closing both houses and the business of appellants. The attachment bond was prepared in Houston by plaintiff on the 15th of March, the day before the levy. On the 16th March, Sunday morning, the United States marshal made a levy on a part of the goods, by virtue of an attachment sued out of the United States circuit court at Dallas at the instance of the Moline Plow Company on a debt of about $1,500, not due. The United States marshal levied on about $2,000 worth of the goods at Dawson, but did not close the house. As soon as the Moline Plow Company had levied their writ, the defendants telegraphed to all their creditors, that they might come in and arrange their claims by having them secured or satisfied in some way. On the third day after the levy by the plaintiff the defendants replevied their property. The defendants, on the 18th July, 1884, filed their answer admitting the indebtedness to W. D. Cleveland, and reconvened for damages for wrongfully and maliciously suing out and levying the attachment, and for an excessive levy; alleging, in substance, that they were doing a general retail business as merchants; that they were at the time of the levy, at both their stores, doing a profitable and prosperous business; were well established in trade, having the confidence of their customers; they were solvent and in good credit at home and abroad where they had been accustomed to deal with wholesale merchants; and had always before enjoyed the credit and reputation, in all their business relations, of dealing fairly and honestly with their creditors, customers and all other persons; that the plaintiff, being actuated with the intent and motive to injure, embarrass, harass and oppress defendants, wrongfully and maliciously sued out and caused to be levied the writ of attachment, seizing goods, wares and merchandise, comprising the stocks of both stores, amounting to the value of $7,000, and closed the doors of both their stores. That no grounds existed authorizing the writ; the affidavit of plaintiff that defendants had disposed in whole or part of their property for the purpose of defrauding their creditors was false. That by the acts of plaintiff complained of, defendants' customers were driven away. That they were deprived of the profits of their business, and of their good name, reputation and credit at home and abroad, and were deprived of the use of their stock and trade, and pray for damages for $9,000. On the 4th of December, 1884, plaintiff filed an amended answer, alleging that the debts sued on had matured. And on 10th June, 1885, filed a supplemental answer, alleging, in substance, that whatever damage defendants had suffered was occasioned by levy of the writ issued out of the United States circuit court. That plaintiff had levied his writ at the instance of the defendants. That by giving an “iron clad” note, and giving security to other creditors, defendants had destroyed their credit. That the defendants were largely indebted, and had no property in sight to secure even a portion of their debts.

On 13th June, 1885, a trial was had, resulting in a verdict and judgment in favor of plaintiff for $1,961.61 against Stansell & Younger and their sureties on their replevy bond, from which judgment, after a motion for new trial was overruled, defendants appealed.

Second assignment of error: The court erred in sustaining the objection of plaintiff to the following testimony offered by the defendants. The defendants offered to prove that the profits of their business at Dawson for the year preceding the levy of attachment by plaintiff were $6,000, as shown by bill of exceptions.

Third assignment of error: The court erred in allowing the plaintiff to introduce in evidence, over the objection of defendants, a paper purporting to be a telegram sent by Stansell & Younger to the plaintiff; the plaintiff having failed to show that said paper was an original message or a copy of an original message; and it further appearing that if it was the telegram sent by defendants and received by plaintiff, plaintiff's attachment was levied before his receipt of the telegram, as set forth in defendants' bill of exceptions.

Seventh assignment of error: The court erred in allowing the plaintiff, over defendants' objection, to read in evidence the petition, affidavit, bond and writ of attachment, in the case of August Bernheim & Bower v. Stansell & Younger, filed and issued in the United States circuit court, at Waco, on 7th March, 1884, such attachment having never been levied and the debt having been paid before the issuance and levy of the writ sued out by the plaintiff, as set forth in bill of exceptions No. 5.

Eighth assignment of error: The court erred in paragraph 4 of the charge of the court to the jury, in this, that the jury are instructed that “the claims of the plaintiff, as set forth and specified in his petition, being admitted by defendants, plaintiff is entitled to a verdict for the amount of the same, with interest thereon to this date;” when the admission of defendants, as shown by their answer, extends only to the “ indebtedness alleged in plaintiff's petition,” and not to the claim for attorneys' fees as set forth in plaintiff's petition.

Tenth assignment of error: The court erred in instructing the jury as set forth in the sixth paragraph of the charge of the court, in defining malice to be personal spite or ill-will of one person toward another; thereby limiting the jury in their consideration and measure of exemplary damages on account of the maliciously suing out the writ of attachment by the plaintiff.

Fifteenth assignment of error: 1. The verdict and judgment is contrary to the law and evidence, in that attorneys' fees are charged against the defendants unjustly; the suit having been instituted before the indebtedness was due. 2. The judgment is against the sureties on the replevy bond for the amount of the attorneys' fees set forth in the verdict and judgment, when the attorneys' fees claimed by plaintiff are not alleged as a part of the indebtedness to secure which the attachment was sued out and levied.

Frost, Barry & Lee, for appellants.

Simkins & Neblett, for appellee, on the introduction of the telegram, cited:...