P. J. Willis & Bro. v. Lowry

Willie, Chief Justice. The charge of the court on the measure of damages was in exact accordance with frequent decisions of this court upon the question. It will not be necessary to notice the objections made to it, further than to cite the cases in which these decisions were made. Block v. Sweeney, 63 Tex., 425; Tucker v. Hamlin, 60 Tex., 174; Blum v. Merchant, 58 Tex., 400; Wallace v. Finberg, 46 Tex., 35; Weaver v. Ashcroft, 50 Tex., 427. There was no error in refusing special charge Ho. 4, asked by appellants. A solvent merchant has surely the right to dispose daily of his goods, and to use the money for his own private purposes, and place it where it cannot be reached by his creditors except at his own pleasure. He may not intend to pay this particular money over to his creditors, and, yet, an attachment will not lie against him. A merchant’s business is to sell goods to his customers. He may appropriate their proceeds to the payment of his debts, but, if he does not, he has not necessarily disposed of his property for the purpose of defrauding his creditors. He may pay his debts with money raised in some other way; or, being solvent, he is supposed to have other property, besides the money thus obtained, out of which Ms debts may be made under execution. The charge requires a merchant to keep the money realized from daily sales, where his creditors may lay hold of it at any time. If he purchase other goods with it, or invest it in real estate, he can be closed out, though he have ample other means with wMch to pay his debts, and actually does pay them as fast as they fall due. Some creditor, whose debt is not due, may sue out an attachment, break up the merchant’s business, and ruin his credit, yet save Mm-self from damages by showing that his debtor did not keep the proceeds of Ms sales in sight of his creditors, or use these particular funds in payment of his debt. It is doubtful if there be many mer [542] chants, who, if suddenly called on by a creditor, could make the showing required by this charge. We are applying the charge to the case of a solvent merchant. There may be some conflict of evidence as to Lowry’s solvency; but there is abundant testimony to that effect in the record. If the charge was correct as applied to an insolvent merchant, it should have been so limited; otherwise, if given, the court would have assumed as true a fact left doubtful by the evidence, a fact which the jury alone were authorized to determine. It properly refused thus to encroach upon the province of the jury. We think the language complained of in the third assignment should not have been used by the counsel in addressing the jury. The court should have forbidden it, though not asked to do so, notwithstanding opposing counsel had a right to reply. The judge should stop the lawyer who first indulges in abusive remarks not authorized by the record. The right to reply does not cure the evil. It merely gives opposite counsel occasion to retort with similar language, so that the contest resolves itself into a war waged outside of the record, in which the one most fertile in abusive epithets is most likely to prove victor. But we have always held that we would not reverse for the use of such language, except when the preponderance of evidence was against the verdict, or when an excessive verdict seemed to have been produced by such conduct. The verdict here was for the amount as proved by the testimony of Lowry. His opportunity of knowing the value of the goods in the condition they were when attached, was better than that of any other witness who testified in the case. The other witnesses estimated them after they were seized and after they had been inventoried, and of course after they had been thrown into more or less disorder. They were doubtless sold in this condition. It is also matter of common knowledge that goods, when sold under the hammer, seldom bring their true value. We cannot say, therefore, that the evidence so preponderated against the verdict as to show that it was not the result of cool and dispassionate deliberation on the part of the jury. We cannot say but that they believed the witness most likely to know the cash value of the goods, and would have believed him though nothing had been said to excite prejudice in his favor When unliquidated damages having no standard by which they can be certainly measured or claimed, great discretion is allowed the jury in fixing the amount of their verdict. In such case there is much opportunity for passion or prejudice to show its influence. But when the exact amount of damages can be reached by positive proof, as in the present case, and the verdict [543] has not gone beyond the amount clearly proved by credible witnesses we cannot say that the jury have not found according to their best judgment, and in accordance with their estimate of the. evidence before them. There is no error in the judgment and it is affirmed. Affirmed. [Opinion delivered October 22, 1886.]