Neill Bros. v. Billingsley

Moore, Associate Justice. The leading question which has been discussed -by counsel in -this case has, been decided by the court in the. case of Harbert v. Neill Bros. & Co. As will be seen by the opinion pronounced in that case; the court holds that the transaction 1)etiveen appellants:and A. Sessums, Powell & Co., by virtue of-which appellants claim "the cotton [167] in controversy in this suit, was not made or consummated in accordance with the custom and usage observed by factors in the Galveston market, in disposing of cotton consigned to them for sale. It follows, as an inevitable deduction, that appellee’s property in the cotton was not divested by its unwarranted transfer. Although appellants may have paid said factors the full value of -the cotton, and supposed its transfer by the delivery order of said factors gave them an absolute and indefeasible title, evidently they acquired no right by this illegal and unauthorized transfer and delivery, which they can assert against appellee. The view taken by the court of this branch of the case, obviates the necessity of a reversal of the judgment, because of the error into which the court inadvertently fell in overruling appellants’ objection to the testimony of the witness Timmons, that it was the general habit or usage with A. Sessums, Powell & Co. to close all sales of cotton made by them within the period of ten days from date of sale; and that the witness believed the transaction out of which this controversy grew was not a sale, but an hypothecation of the cotton. Unless the rules adopted by A. Sessums, Powell & Co. for conducting their business were known to appellants, unquestionably they were not bound or affected by them. Looking at the other testimony before the jury, it is apparent that this evidence occasioned no injury to appellants; because the sale was not of a character which the factors were authorized to make for their consignors, and, also, because the evidence merely shows that it was the habit of these factors to conduct their business in conformity with the general usage of the market; and whatever may have been the particular rules adopted hy them for transacting business, unless they were sanctioned by appellee if more liberal than those warranted by general usage, or were known to appellants if more restricted, they were immaterial, and could in no way affect the result of the case; and as, in the opinion of the court, the transaction between appellants and the factors, A. Sessums, [168] Powell & Co., when viewed in the most favorable light possible for appellants, will not support their claim to the cotton, the error in admitting the witness to state, that in his opinion the delivery of the cotton was an hypothecation, is likewise wholly immaterial, and certainly could do them no injury. There is, however, an error in the judgment, for which it must be reversed. The court instructed the jury, if they found for the plaintiff, (the appellee in this court,) to show by their verdict the value of the cotton at the date of their verdict, and also at the time the claim bond was given by the claimants (the appellants). The verdict does not conform to the instruction, or properly respond to the issues submitted. We here quote it: “We, the jury, find the value of the cotton in question to be at this time one thousand and seventy-one y3^ ($1,071.35); and find for the plaintiff judgment in the sum of eleven hundred and eighty T|ir ($1,180.05), with interest from 17th July, 1873, to date, (13 months and 7 days,) $104.22; total, $1,284.27 (twelve hundred and eighty-four y3^ dollars.) Galveston, March 26, 1874.” Upon this verdict, the court gave judgment for appellee against the claimants for the cotton, “ together,” as reads the judgment, “with (10) ten per cent, damages upon the assessed value thereof, as found by the jury aforesaid, to wit, the sum of one hundred and eighteen dollars, and all costs in and about this case incurred, and that execution issue as well against the sureties on said claimant’s claim bond, to wit, Charles E. Richards and Thomas K. Hawkins, for the amount of said damage and cost, as against said claimants; and If said claimants shall fail or refuse to return said cotton to the plaintiff within ten days from the date of the rendition of this judgment, that the plaintiff, James B. Billingsley, shall have and recover of and from the said claimants, Charles M. Todd and Henry M. Neill, and- the sureties on their bond, to wit; Charles E. Richards and Thomas K. Hawkins, the sum of one thousand two hundred and eighty-four dollars and twenty169 seven cents, with interest thereon from the date hereof, at the rate of eight per cent, per annum, together with ten per cent, damages as aforesaid, to wit, the sum of one hundred and eighteen dollars, and all costs in and about this cause incurred, for which execution may issue.” Evidently, the verdict, however intended by the jury or understood by the court, was not responsive to the charge. We are not warranted in saying, because the jury say they “find for the plaintiff judgment for $1,180.05,” that this was the value of the cotton at the date of the claim bond. Neither the issues in the case nor the charge of the court called for a finding of this kind; yet it is only by inference from it that we can say that the jury found that tho claimants failed to establish a right to the cotton claimed by them. Evidently the right to the property and its value are the only matters for the determination of the j ury. The amount to which the plaintiff is entitled, if the property is not surrendered by the claimants, is fixed by the statute, and is not a matter for the consideration of the jury, except indirectly, in ascertaining and determining the value of the property. We are not called upon¡ in this case, to say whether the value of the property should have been ascertained by the jury at' the date of the verdict, or ■ at the date of the claim bond, or between these dates. Nor is it necessary for us to inquire whether the evidence before the jury was sufficient to enable them to fix its value at either of these dates. If, however, it was deemed essential by the court that the value of the cotton should be ascertained by the verdict at the date of the claim bond as well as at the time of trial, the verdict returned by the jury should not have been received, but the case should have been recommitted to them, that they might return a verdict in proper form upon the issues submitted to them. This course was not taken, because the court probably regarded the second clause of the verdict, as intended by the jury, as a finding of the value of the cotton at the date of the claim bond. But we cannot so view it. It may possibly [170] have been the purpose and intention of the jury; but if so, the language of the verdict does not express their intention. The court must take the plain language of the verdict, and not mere inference or supposition as to the meaning of the jury, as its guide in pronouncing its judgment upon the verdict. The judgment rendered by the court1 neither follows the verdict nor - conforms strictly to. the statute. The value of the cotton, as found by the jury at the date of the judgment, is $1,071.35; yet judgment is given for ten-per cent: damages, not on this amount, but on $1,180.05, which, as has been said, we are not warranted,in saying was the value of the cotton at any period whatever. Sor is the judgment against the sureties in the claim bond, for thp costs of suit, warranted by the statute. (Paschal’s Dig., art." 5314.) It was unnecessary, and certainly is not within the contemplation of the statute regulating trials of the right of property, that the court "should enter judgment and award execution such as is given plaintiff in the event of the failure of the claimant to surrender the property, as stipulated in the claim bond. "If, however, the judgment as thus rendered conformed to the statute, appellants would have no just cause of complaint. At most, it would be mere surplusage, and could in no way injuriously affect them. But such is not the case. A second judgment is rendered against the sureties on the claim bond- for costs, as well as said, excessive damages. It also condemns the claimants to pay interest upon interest, while the statute merely requires the obligors to pay interest on the value of (the property from the date of the "Bond. (Paschal’s Dig., art. 5316.) . The judgment is reversed and the cause remanded. Reversed and remanded.