Drew v. Ellis

WILLIAMS, Associate Justice. R. H. and H. L. Sellers executed to W. O. Ellis their note for $5000, with interest and attorney fees, in consideration of certain stock to be delivered by him to them upon payment of the note, and which was retained, attached to the note, as collateral .security for its payment. Ellis endorsed the note to appellant. Subsequently, by some mistake, the stock was delivered to Ellis, and by him was disposed of, with the statement that he had other stock in bank to ■deliver to the Sellerses. The note matured, was not paid, and was protested, the stock not having been delivered as agreed upon. Appellant sued the makers of the note, joining appellee Ellis as endorser, and took out an attachment against him on the ground that he had disposed of his property in part for the purpose of defrauding his ■creditors, which attachment was levied upon Ellis’ real estate. The Sellerses pleaded failure of consideration, and Ellis reconvened for damages for the wrongful and malicious suing out of the attachment, alleging, among other things, that a profitable sale of the land attached had been prevented by the levy. At the trial all parties conceded that the Sellerses were not liable upon the note, and they were discharged. Ellis did not deny his liability on the note, but relied solely upon his plea in reconvention for damages. Judgment was rendered against him for the amount due on the note, and in his favor for $8528.80 damages. From this judgment Drew prosecutes this appeal. The basis of the judgment for damages was an offer made by George B. Zimpelman to Ellis for the land pending the suit. The transaction will appear from the following correspondence: “Austin, Texas, September, 19, 1891. “W. O. Ellis, Esq., Fort Bend County, Texas: 11 Dear Sir — I understand that you are the owner of the Thomas Earle ■survey of 3565 acres of land in Harris County, on Buffalo Bayou, and that same is for sale. If you are desirous of selling, I will give you for a clear title, which must be satisfactory to my attorney, $10 per acre for it. I can pay $2000 cash, and will pay you one-half the balance in one year, and one-half in two years, with 8 per cent interest. Please answer this promptly if you accept. You can address me here. *510 “As the cash payment is small, if you wish it I will give you additional security for payment of first note, to make it entirely secure. “Yours truly, [Signed] “George B. Zimpelman.” “Sartartia P. O., Texas, September 19, 1891. “Col. George B. Zimpelman, Austin: “ Dear Sir — Note yours 18th. I only own an undivided half-interest, in the Thomas Earle 3565 acres survey. Please let me know if you would make the offer for an undivided half interest in the tract. Please reply-prompt. “ Yours truly, [Signed] “ W. O. Ellis.” - “Austin, September 22, 1891. “W. O. Ellis, Esq., Sartartia P. 0., Fort Bend County, Texas: “ Dear Sir — I thought you owned the whole tract of the Thomas-Earle survey when I made you the offer. I would prefer to buy all, but-if the parties interested with you will accept the same offer I made you, will make the same proposition to them. Please let me know who the-parties are, so I can write to them; or if you will be kind enough for you to mention it to them, will be much obliged to you. “If you wish to sell your undivided half, my proposition holds good if you will accept the terms stated. Please let me hear from you at. once. “ Yours truly, [Signed] “ Geo. B. Zimpelman.” “Sartartia P. O., September 24, 1891. “Col. Geo. B. Zimpelman, Austin, Texas: “ Dear Sir — Note favor of 22nd. My half-interest in the land has-been so clouded by litigation that it will be impossible for me to make a. clear title. A. J. Vick owns the other half of this tract. I think Mr. Vick would sell the land, but his conversation with me leads me to believe that he would want a good cash payment on the land; but you: might confer with him. ‘ ‘ Yours truly, [Signed] “ W. O. Ellis.” At the time the offer was made by Zimpelman the land was encumbered by a vendor’s lien note on which about $7000 was to become due-March 30, 1892. It was shown that Ellis had large means, and he was amply able to have paid the note either before or at the date of Zimpelman’s offer. There are other facts, but these will suffice for the disposition of the case. *511 Opinion and Conclusions of Law. —It appears that at the time the attachment was levied there was no pending trade which was defeated by the levy. Ellis owed the debt, was able to pay it, and it was his duty to do so. The question presented then is, whether or not he can recover for the loss which resulted from his failure or refusal to sell to Zimpelman. No case is cited or found in which damages have been allowed for the levy of an attachment upon real estate. At the same time there is good authority for the position, to which we readily assent, that a loss might result from such a levy, which would be so direct and proximate as to entitle the party to compensation. Wade on Attach., 579; Trawick v. Martin-Brown Co., 79 Texas, 460; Wetsel v. Tillman, 3 Texas Civ. App., 559. But the principle is firmly established here as elsewhere, that mere depreciation in value occurring pending the levy is not such a direct effect of the levy. The owner is not disturbed in his possession and use of the premises, and the levy does not of itself lessen the value of the property. When a pending trade is broken up by the levy itself, unaided by the act. or delinquency of the defendant, and depreciation and loss follow, a different case is presented. If the defendant does not owe the debt, it would be difficult, under such circumstances, to show why he should not recover. Such a case is presented in Wetsel v. Tillman, 3 Texas Civil Appeals, 559, which is distinguishable from this by the fact, among others, that the property of the party was there attached for a debt for which he alleged he was not liable. In Trawick v. Martin-Brown Company, supra, one of the reasons given for not allowing the party whose land was attached to recover for alleged loss of sales is thus stated: “ Ordinarily, as we take it, where the defendant, as in this case, owes the debt for which he is sued, a levy upon real estate can have no such effect. ■ If he can find a purchaser he can pay the debt, as he ought to do, and discharge the lien.” This reason applies here. The attachment was on the land several months before the offer was made, during which no damage had resulted. Ellis could have discharged the lien either before or after the offer was made, and thus have avoided the loss of which he complains. It was his duty to have done so. The case is unlike that of a levy upon personal property, when it is taken from the owner’s possession and the damage begins at once. The levy upon land, of itself, causes no damage, unless perhaps a trade pending at the time of the levy is defeated; and can cause none thereafter if the defendant owes the debt and discharges his obligation. But it does not appear satisfactorily that Zimpelman would have bought the land had there been no attachment. The title was not in the condition contemplated by his offer, as it was encumbered by a debt soon to fall due, while he required a good title. This encumbrance, it is true, might have been adjusted; but it does not appear that Zimpieman knew of it or would have taken the land thus charged. In several other particulars the *512 case made by the appellee appears to us to be deficient, but those pointed out are, we think, sufficient to dispose of the case. Delivered March 1, 1894. Application for writ of error to Supreme Court was refused May 21, 1894. ■The judgment will be reversed, and judgment will be here rendered for appellant against appellee for the debt, interest, attorney fees, and costs, and against appellee that he take nothing by his plea in reconvention. Reversed and rendered.