R. F. Scott Grocer Co. v. Kelly

COLLARD, Associate Justice. Opinion.—The judgment of the lower court, in our opinion, should be reversed. The suit is for damages actual and exemplary brought by S. W. Kelly, appellee, against R. F. Scott Grocer Co. and J. R. Shelton, for the wrongful and malicious issuance and levy of attachment, by defendant below, on certain property described in the petition. The trial resulted in verdict and judgment for plaintiff for $1254.36 actual and $600 exemplary damages, from which the appeal is taken. The petition shows that plaintiff had executed a deed of trust to J. R. Shelton, trustee, for the benefit of certain named creditors, including R. F. Scott Grocer Co., whose debt was deferred to other named debts, and that possession of the goods and merchandise was delivered to Shelton for the purpose of selling the goods as directed in the trust deed. Plaintiff’s entire stock of goods in his mercantile business, the fixtures in the store where plaintiff had carried on his business, and the lease plaintiff had of the store, was conveyed to the trustee, and the petition shows that the trustee had taken possession of all the property, including the store house. The petition claimed special damages, by reason of the attachment and levy, for loss of credit as a merchant. Defendants specially excepted to this item of damage; the court overruled the exception, and appellant assigns the ruling as erroneous. *140 1. Having mortgaged and delivered possession of all his stock of merchandise to the trustee, together with his lease on his store house, it must be held that plaintiff had voluntarily gone out of the mercantile business and could not recover damages for injury to his credit as a merchant. That he may have intended at some future time to resume business ought not to change the rule. Such expectant resumption of business and injury to credit would be too remote as a basis for damages to commercial credit. Hunt v. Kellum & Rotan, 59 Texas, 535. Plaintiff it is true alleged that he had other property, not mortgaged, amply sufficient to pay his debts, but this property was no part of the goods and merchandise of the business. The fact, if it had existed, that he was insolvent would of itself be enough to prevent a recovery for injury to commercial credit (Roby & Nichols v. Meyer & Bulte, 84 Texas, 387); but insolvency is not a necessary prerequisite as a bar to such recovery. Other facts will have the same effect though the debtor be solvent as, if he is not in commercial business at all, or has abandoned it. If he be not a merchant he cannot be injured in his credit as a merchant. The special exception to such damages should have been sustained. 2. The court did not err, as insisted by appellants, in overruling defendant’s special exception to that part of the petition claiming damages for the levy upon and sale of defendant’s lease of the storehouse and fixtures. The argument of appellant that the leasehold estate cannot be sold Under execution or by the lessee without the consent of the landlord, and that therefore there would be no right to damages if it should be seized and sold under attachment is not sound. The wrong would consist in the fact of the seizure and sale without legal right. The absence of legal authority to do the act would not excuse or justify it, but such want of authority would furnish the very reason, or one of the very reasons of complaint. The injured lessee would be entitled to damages commensurate with the injury, the value of the use for the time he may have been dispossessed of his household estate. 3. The court erred in sustaining plaintiff’s special exception to that part of the defendant’s answer showing that plaintiff bought the goods at sheriff’s sale. The goods were sold by order of the court under the attachment proceeding before judgment, and defendant alleged that plaintiff himself was the purchaser of his goods at the sale by the sheriff, or if he was not, that he immediately thereafter again became the owner thereof at the price for which the sheriff sold the same, whereby he wholly mitigated and wholly saved himself from damages arising from the levy and sale. The amount plaintiff paid to regain possession of his property with interest while out of his possession is the measure of ordinary damages in such cases. Field v. Muenster, 32 S. W. Rep., 417. A different rule, that contended for by appellee, was announced in Schoolher v. Hutchins, 66 Texas, 324, but that case was overruled by this court in Field v. Muen *141 ster, Justice Key delivering the opinion, which was sustained by the present Supreme Court on writ of error (Muenster v. Field, 89 Texas, 152), and the correct rule upon the principle and precedent established as above declared. The alleged fact that plaintiff purchased the goods at the sheriff’s sale, or had it done for his benefit, or regained possesssion soon after the sale, paying therefor less than value, was a pertinent issue measuring the amount of rightful recovery by plaintiff, and it was error to refuse to try the same. Sprague v. Brown, 40 Wis., 620. 4. The court refused a- charge asked by defendant as follows: “If you believe from the evidence that before suing out the attachment J. R. Shelton, acting for defendant Grocer Co., in good faith sought legal advice in regard to the propriety of suing out the attachment, and fully laid all the facts before counsel, and was advised by counsel that it had the right to sue out the attachment, and that the same was sued out in pursuance of such advice, then you may take such fact in con-consideration, in connection with all the other facts and evidence, in determining whether or not the same was sued out maliciously.” There were facts in proof to which the charge applied, properly admitted by the court. It was not upon the weight of evidence. It was a proper charge to direct the jury to the issue upon which the testimony was admitted. Griffin v. Chubb, 7 Texas, 603. There are several assignments of error which we need not discuss. It will suffice to say that wre have examined them and find that they should not be sustained. Because of the errors above pointed out the judgment of the lower court is reversed and the cause remanded. Reversed and remanded.