
    No. 2314.
    Leon & H. Blum v. M. Stein.
    1. Evidence—Damages.—In. a suit to recover damages for the "wrongful seizure of goods under attachment, evidence as to the amount for which they were insured at the time of the seizure, is inadmissible when offered for the purpose of proving their value.
    2. Same.—Neither is evidence admissible in such a suit, that after the goods were seized under attachment by the defendant, other attachments were levied on the plaintiffs’ property at the suit of other creditors.
    3. Same—Judgment.—In a suit by attachment, the defendant claimed damages for the wrongful seizure of his property under the writ. The jury found for the plaintiff (under special issues) on his debt, a verdict for one thousand nine hundred and twenty dollars and nineteen cents, and for defendant, as actual damages, eight thousand one hundred and twelve dollars, “ being actual damages (to defendant) six thousand one hundred and eighty-two dollars and eighty-one cents. They also found for defendant five thousand dollars exemplary damages. The proceeds arising from the sale of the attached propérty had been paid into court. Judgment was rendered for eleven thousand one hundred and eighty-two dollars and eighty-one cents, but no disposition was made of two thousand four hundred and ninety-three dollars and ninety cents that had been paid into court, and, which resulted from the sale of the property that had been seized. Held:
    
    (1) The defendant had no right to a lien on any portion of the money that had been paid into court.
    (2) The judgment should have been for the defendant for such an amount as remained after deducting from the amount found as damages, the amount of his debt and the amount of money under the control of the court arising from the sale of the attached property.
    (3) The court was charged with judicial knowledge of the deposit made in court and that it was subject to the lien of the attachments. If the goods had been sold subject also to the lien of junior attachments, and the defendant was satisfied with his judgment which disregarded the money on deposit, then the court should have entered an order releasing the money then in custody of the court from the prior lien of the plaintiff, and left it subject to the lien of the junior attachments.
    4 Evidence.—In a suit for damages for wrongfully seizing under attachment a stock of goods, neither the inventory, the appraisment made bv the sheriff, nor the report of sales are conclusive of their value.
    5. Attachment.—The failure of a debtor to pay a debt does not authorize the suing out of an attachment, and when upon this ground a principal directs his agent to sue out, and cause to be levied, an attachment without reference to whether the grounds recognized by law as sufficient to authorize it, exist, the agent’s act must be deemed the act of the prineipal, and his negligence, rashness or carelessness in making an untrue affidavit for an attachment, when such as to clearly show a conscious indifference to the rights of a defendant, must be deemed malicious, and the act as authorized by the principal.
    Appeal from Harrison. Tried below before the Hon. J. G. Hazlewood.
    Leon & H. Blum, through their agent, Zemanskey, sued out attachment on the ground that appellee was about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. The affidavit was made by Zemanskey, agent for appellants, and on the same day the writ of attachment was issued, and placed in the hands of S. R. Perry, sheriff of Harrison county, Texas, and was by him levied upon the stock of goods of appellee, valued by the sheriff at two thousand six hundred and thirty-eight dollars and thirty-eight cents.
    Appellants prayed for the sale of the property levied on under the writ; the district judge ordered the property sold, which was done and the proceeds of sale, after deducting cost, leaving two thousand four hundred and ninety-three dollars and ninety cents, was paid to the district clerk, where it remained.
    Appellee, on February 18, 1887, filed his original answer, containing general demurrer, general denial, admitted the justness of appellant’s claim, averring that the attachment was wrongfully, maliciously and without probable cause sued out, and prayed for damages in the sum of twenty thousand dollars actual and twenty-five thousand dollars exemplary damages.
    Appellee alleged that the grounds upon which the attachment was issued were false; that the appellant caused the same to be maliciously sued out and directed their agent in the premises, and adopted, ratified and confirmed all of the malicious acts of the agent, and participated in and approved the same.
    Appellants filed their supplemental petition containing general demurrer, general denial and alleging the truth of the ground upon which the attachment was issued, and that appellee was removing goods from his store, secretly selling the same for less than cost, and that at and before the levy of the writ he was conspiring with one Frank & Son to convey all of appellee’s goods to Frank & Son by mortgage and bill of sale, and to have said Frank & Son to attach his, appellee’s, goods; the debt of Frank & Son being about one thousand and seven hundred dollars, and also seeking to have Julia Stein, wife of appellee’s brother, to attach on a fraudulent and pretended claim for about two thousand and five hundred dollars.
    Appellee denied the truth of these allegations. Judgment for eleven thousand one hundred and eighty-two dollars and eighty-one cents. A junior attachment was levied at the suit of A. Frank & Son.
    In view of the great mass of testimony in this case, and that it has been remanded for a new trial, it is deemed proper only to give an outline of the testimony of Zemanskey, the agent of the Blums, in the procurement of the attachment. He was a traveling salesman and “ adjuster ” for his principals, who went to Marshall to effect a settlement with, Stéin. He informed Stein that “derogatory reports” were against him, and asked a statement of his condition, and an inspection of his books— neither of which was accorded. The agent then wanted a note with gobd security for the debt, or goods in payment of it, which was declined. The agent had no personal ill will toward Stein. He testified that fie sued out the writ of attachment because he believed the debt was in jeopardy. He swore that the affidavit for attachment m ay have been written a month before he received it. He said that Stein had been selling goods on sixty days, and he believed he was trying to place his property beyond the reach of his creditors. The papers for attachment were all prepared in Galveston. He “ knew that , an attachment would break Stein up in the commercial world, and he (the witness) did not care.” He believed Scott & Levi, Blum’s attorneys in Galveston, prepared the attachment papers. .
    He further stated “ I was instructed by the house to attach provided I could not effect a settlement.” The attachment bond was signed by Levi Blum, Hyman Blum, Sylvain Blum, M. Marks and Isaac Blum.
    The court instructed the jury, in effect, that if the evidence in the case showed that the affidavit for the attachment was made by an agent and not by the plaintiffs in person, and the evidence showed that the agent acted maliciously and without probable cause: then, before the plaintiffs could be held responsible therefor, and before the jury could find damages which defendant may have sustained by reason thereof, the evidence must further show that the plaintiffs at the time had knowledge of and participated in said malice, or that since that time the plaintiffs ratified, adopted or approved the malicious act of the agent, who made the affidavit, and unless the jury so believed, and that the plaintiffs, with full knowledge of the malicious action of their agent, had ratified such action, the jury •should find for the plaintiffs.
    The only facts apparently relied on to justify the attachment, in addition to an inability to pay the debt, was the refusal of Stein to secure its payment, and his refusal to pay with goods.
    
      Scott & Levi and James G. Turner, for appellant,
    submitted the following proposition:
    “The court erred in charging the jury in general terms that any unlawful act, willfully and purposely done, to the injury of. another person, is as against that person malicious; and the jury might well understand, and probably did understand therefrom, that any act resulting in harm' to any person, if done with the simple intention to do the act, is malicious, whatever reason the party doing the act may have had, or believed that he had, for doing the act, and regardless of its legality, and this error is not cured by other portions of the charge, wherein the rules regarding malice are more clearly stated,” citing Sparks v. Dawson, 47 Texas, 144; Weaver v. Ashcroft, 50 Texas, 443.
    On their proposition that the court erred in failing to instruct the jury particularly that the measure of damages, if any, was what the goods levied upon were worth in cash at the place and time, and in condition and quantities, they were found and taken by the sheriff under the attachment, with interest on such value at eight per cent per annum from the day of seizure. The court instructed the jury that the measure of damages was what the goods were reasonably worth at the time they were levied on by the sheriff, with interest, etc., they cited 63 Texas, 82; Id., 419; 60 Texas, 171; Id., 174; Id., 158; 61 Texas, 144; Id., 180.
    On their proposition that the court erred in instructing the jury that the inventory of the sheriff or the report of sale were not conclusive or binding upon the defendant, and in that immediate connection directing the jury to the testimony at large as to value, and that the jury may well have understood, and probably did understand therefrom, that said inventory and report could not be considered at all, even in connection with the other testimony, in arriving at the true value of the property seized, they cited Revised Statutes, article 1317; Sparks v. Dawson, 47 Texas, 144.
    
      That the court erred in submitting the question of punitory damages to the jury at all, because there was no evidence upon which to base a conclusion that plaintiffs acted maliciously in the matter, or that plaintiffs’ agent acted maliciously in the matter,” they cited Revised Statutes, article 152; Blum v. Davis, 56 Texas, 423; Sparks v. Dawson, supra; Weaver v. Ashcroft, 50 Texas, 443.
    On their proposition that the court erred in charging the jury that the malice of plaintiffs’ agent, if any, might be imputed to plaintiffs, if, after plaintiffs learned of such malice, they ratified and adopted it, in that there was no evidence whatever to show any such ratification after the fact, beyond the simple fact of plaintiffs prosecuting the suit after filing of the plea in reconvention, which is not such ratification as is required bylaw; and also in that there was no sufficient evidence of malice on the part of the plaintiffs’ agent, they cited Willis v. McNeil, supra; Griffin v. Chubb, 7 Texas, 615; Railroad Company v. LeGeirse, 51 Texas, 202; 1 Graham & Waterman on New Trials, 263, et seq.
    (Other propositions were submitted which, in view of the opinion, are not referred to.)
    
      A. Pope and Wilson & Lane, for appellee,
    contended that the court did not err in charging the jury that, if plaintiffs had no reasonable grounds to believe defendant was about to convert his property, to place it beyond the reach of his creditors, and if the plaintiffs, by their agent, acted negligently, carelessly, rashly and in such a manner as to show clearly a conscious indifference to the rights of defendant Stein, then the jury could give exemplary damages, citing Willis v. McNeil, 57 Texas, 476, 477; Carothers v. McIlhenny Company, 63 Texas, 138, 147; Bear Brothers v. Marx & Kempner, 63 Texas, 302, 303; 1 Southerland on Damages, 724.
    That the court did not err in its charge to the jury that the malice of the plaintiffs’ agent could be imputed to the plaintiffs, if, after plaintiffs learned of such malice, they ratified and adopted it, they cited Griffin v. Chubb, 7 Texas, 614; Western v. Dorr, 3 American Decisions, 239; Donnell v. Jones, 48 American Decisions, 59; 62 Texas, 200-204.
   Stayton, Associate Justice.

This action was brought by appellants to recover on an open account the sum of one thousand seven hundred and eight dollars and sixty-eight cents, besides interest, and attorney’s fees, which, under the contract on which the goods were bought, was to be paid in the event the claim bad to be enforced by suit.

An attachment was sued out and levied on a stock of goods that belonged to the appellee, and this was sold during the pendency of the action under an order of the court. The appellee admitted the justice of the claim sued on, but pleaded in reconvention that the writ of attachment was wrongfully and maliciously sued out, and for this sought to recover damages actual and exemplary. The leading basis for actual damages was the value of the goods and interest thereon from the time «of seizure, and the evidence as to value was conflicting.

On the trial the appellee was permitted to prove that he had insurance on the goods amounting to over seven thousand dollars. This evidence was objected to, and its admission is assigned as error. Such evidence could not have been introduced for any other purpose than to show the value of the goods, and for this purpose we think it was inadmissible. The amount of the insurance, as between the parties to the policies, would but evidence and determine the extent of the liability on the part of the insurer in case of the loss of the stock of goods "by fire; and even as between them, the actual loss would, under ■any ordinary policy, be open to adjustment. As to the appellants, however, the contracts between appellee and the insurance companies were res inter alios acta, and for no purpose admissible against them.

On the trial the appellants proposed to prove that the sheriff levied a writ of attachment, sued out by another firm, on the same goods that were seized primarily under the writ of attachment sued out by them, and this evidence was rejected. We see no error in this ruling. The appellee’s cause of action accrued when the appellants sued out and caused to be levied •a writ of attachment, if this was done wrongfully; and what other persons might subsequently do, could not take away that cause of action; nor tend to show that the appellants’ act in suing out the writ of attachment was not wrongful. There was, however, ample evidence offered, without objection, to prove the same fact, about which there was no controversy, and from the bill of exceptions it appears that the court refused to admit the evidence on the ground that the fact was uncontroverted and fully proved by the evidence already admitted. Such evitaence could have no bearing on the question of the appellee’s right to recover for the wrongful suing out and levy of the writ /of attachment, nor upon the measure of damages. The fact iüiat the goods had been sold and the proceeds paid into court "was known by the court without proof of that fact on the trial, and in adjusting the rights of the parties, under the verdict, the-court should have considered that fact.

The verdict of the jury was as follows:

“We, the jury, find for the plaintiff’s, for merchandise account, attorney’s fees and interest on same from the third day of January, one thousand nine hundred and twenty dollars and nineteen cents.
“We, the jury, find for defendants eight thousand dollars, actual damages, with eight per cent interest from the third of January to date, amounting to one hundred and twelve dollars, leaving the actual damage to M. Stein, six thousand one hundred and eighty-two dollars and eight-one cents. We, the jury, find for defendant five thousand dollars examplary damages.”

The court directed the jury in the charge to say by their verdict how much they found for appellants, if anything, and how much for appellee, if anything, and deduct the smaller from the greater, and find the balance in favor of the party having the larger claim. On this verdict a judgment was entered in favor of the appellee for eleven thousand one hundred and eighty-two dollars and eighty-one cents, but no disposition was made of the money in court which amounted to two thousand four hundred and ninety-three dollars and ninety cents.

The value of the goods seized and sold, evidently constituted the main item going to make up the sum given by the verdict as actual damages. The money in court, arising from the sale of the attached goods, represented, at least, a part of their value and the appellee was not entitled to this and also to the entire value of the goods. After the indebtedness of the appellee to the appellants was satisfied by deducting the sum due by him from the sum which the verdict declared he was entitled to receive as damages, the appellants had no" right to a lien on any part of the money in court, for their claim was paid. In addition to deducting from the sum found to be due to the appellee, as damages, the amount of his indebtedness to the appellants, the court should have deducted the money in court arising from the sale of the attached goods, and have entered judgment for the appellee, for the balance of the amount given to him by the verdict.

The court knew judicially that the money was in court, and by the evidence that it was subject to the lien of the attachment sued out [and levied by A. Frank & Son. The statute provides that “should the attachment be quashed or otherwise vacated, or should judgment be for the defendant, the court shall make the necessary order restoring the property to the defendant or discharging the claim or replevy bond, as the case may be.” (Rev. Stats., art. 182.) In this case the attachment was, in effect, vacated when the debt which it was sued out to secure was satisfied, through the judgment entered, and an order should have been entered releasing the money in court from the lien . once fixed on it, leaving it, however, subject to the lien fixed on it by the attachment levied subsequently to that sued out by the appellants. To have authorized the court to do this it was not necessary that the evidence rejected should have been introduced, and we have referred to this matter only with a view to the future disposition of the case in the court below.

The jury returned into court two verdicts, the first of which the court refused to receive, and it is urged that this was error, but in view of the disposition that will be made of the case, it is not necessary to consider this assignment. If the court, in recapitulating the issues raised by the pleadings of the parties, did not state them so fully as counsel were of opinion they should have been, a charge should have been asked which would have done so.

The charge complained of in the ninth assignment, it is admitted, was such a charge as a lawyer would understand to present the legal questions involved correctly, but it is urged that it was not so framed as to be correctly understood by the jury. In such a case counsel should ask a charge which would render the legal proposition clear to the unprofessional mind. There is no reason to believe that a jury of ordinary intelligence would have been misled by the charge given.

The assignments of error which complain of the failure of the court to give charges, not asked, need not be considered. The court very properly charged the jury that neither the inventory and appraisement made by the sheriff, of the goods seized, nor the report of sales was evidence of their value, but that they should look to the entire testimony to ascertain that fact.

Opinion delivered October 18, 1887.

It is urged that there was no evidence which authorized the court to submit to the jury the question of exemplary damages. In view of the fact that the judgment will be reversed and the cause remanded, we deem it improper to review and discuss the evidence and feel only required to say, in the light of the evidence, that the court properly submitted that matter to the jury. Considered in the light of the evidence, the court did not err in instructing the jury that they might find exemplary damages “if the plaintiffs, by their agent, acted negligently, rashly, carelessly and in such manner as clearly to show a conscious indifference to the rights of the defendant,” for the evidence shows that the appellants directed their agent to sue out and have levied the writ of attachment if he was finable to get a settlement of the debt due them.

The failure of a debtor to pay a debt does not authorize the suing out an attachment; and when, upon this ground, a principal directs an agent to sue out and cause to be levied an attachment, without reference to whether grounds recognized by law as sufficient to authorize it, exist, the agent’s act must be deemed the act of the principal, and his negligence, rashness or carelessness in making an untrue affidavit for an attachment, when such as to clearly show a conscious indifference to the rights of a * defendant, must be deemed malicious, and the act as authorized by the principal.

The charge of the court as to the facts which would render the appellants liable in exemplary damages for the act of their agent was full and correct; but those asked by the appellants, in so far as not covered by the charges given, were such as would have been likely to mislead the jury in view of the facts proved.

The other assignments of error relate to matters not likely to arise on another trial, or to matters which could not affect the ultimate decision of the case, and they will not be copsidered in this opinion.

The error of the court below in not deducting the amount of money in court from the sum for which judgment was rendered might be corrected here and the judgment affirmed, but for the improper admission of evidence to which we have referred; but for this error the judgment will be reversed and the cause remanded.

Reversed and remanded.  