Michigan Stove Co. v. Waco Hardware Co.

KEY, Associate Justice. The Michigan Stove Company sued the Waco Hardware Company upon account, and at the same time sued out an attachment which was levied upon a stock of merchandise. The hardware company filed a cross-action for damages, alleging that the attachment was wrongfully and maliciously sued out. The hardware company admitted its liability upon the account sued on, and the contest in the court below was over its right to recover damages. The basis for the attachment was an affidavit, stating, among other-things, that the hardware company was about to dispose of its property with intent to defraud its creditors, and that the plaintiff would probably lose its debt unless the attachment issued. The case was submitted to a jury upon special issues, and they found in effect that both of these statements were untrue. They also found the-value of the property attached to be $5000, and judgment was rendered for the defendant on its cross action for $5000, less $1085.15, the amount of the account sued on by the plaintiff. The plaintiff has appealed and assigns various errors, some of which *303 were ruled upon by this court when the case was here on a former appeal. See 22 Texas Civ. App., 293. Before thh last trial, the plaintiff filed a first amended original petition, which contained this averment: “That heretofore, to wit, on the 1st day of March, 1897, at the instance of your petitioner, there issued in this cause a writ of attachment, which was levied upon certain goods, wares, and chattels as the property of the said Waco Hardware Companjq as shown bjr the officer’s return indorsed on said writ now on file among the papers in this cause, the same having been sold and money therefor now with the clerk of this court.” The defendant in its cross-answer averred that the attachment was wrongfully and maliciously sued out, and described the property levied upon as follows: “The entire stock of hardware, farm implements, stoves, house-furnishing goods, etc., located in the storehouse where defendant was then carrying ón a retail hardware business and house-furnishing business in the city of Waco and also all the goods located in the warehouse at Ho. 105£ Ho. 8th Street, Waco, Texas.” The first and second assignments of error complain of the action of the court in overruling special exceptions to the plea in reconvention challenging its sufficiency, because it did not contain a list and specific description of the several articles of merchandise seized by the sheriff. In support of their contention, counsel for appellant cite article 126& of the Revised Statutes, and Schneider v. Furgeson, 77 Texas, 572, and other cases following the doctrine announced in that case. The statute referred to requires a defendant desiring to prove any payment, counterclaim, or set-off, to file with his plea an account, stating distinctly the nature of such payment, counterclaim, or set-off, and the several items thereof; and declares that on failure to do so, he shall not be entitled to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof. In this case, the plea setting up the counterclaim is not accompanied by an account giving the several items of the property seized; but the plea itself, taken in connection with the admission made by appellant in its amended petition, was reasonably sufficient to give full notice of the character of the counterclaim. If this had been an independent suit for damages, or if appellant had not admitted in its pleading that it had caused the attachment to be levied upon appellee’s property, the authorities cited might control and require a reversal of the judgment. But under the circumstances peculiar to this case, we are of the opinion no error was committed in overruling the special exceptions referred to. The stove company’s pleading referred to the return of the officer for a description of the property seized, and it was for the seizure of this property that the hardware company sought damages. We think the inventory of appellee’s stock of goods taken January 1st was admissible in evidence, to°be considered by the jury in connection with the testimony of the witnesses Storey and Strauss, in determining the identity and value of the property seized. At any rate, the *304 verdict fixed the value of the property at $5000 only, and appellant stated in its supplemental petition that the property referred to inventoried approximately $5500. We also hold that the evidence sustains all the findings embodied in the verdict, and overrule the several assignments complaining of certain findings. The charge of the court is not subject to the criticisms urged against it, and no error was committed in refusing special instructions. This opinion embodies our conclusions both of law and fact, and finding no reversible error, the judgment will be affirmed. Affirmed. Writ of error refused.