
    LANCASTER et al. v. CORSICANA NAT. BANK.
    (No. 318-3654.)
    (Commission of Appeals of Texas, Section A.
    May 10, 1922.)
    1. Attachment &wkey;>375(3) — Plaintiff liable for damages for seizure of property in excess of debt.
    If an affidavit for attachment was false in part and by reason thereof property in excess of the real debt was taken, defendant can recover damages for the seizure of property in excess of that which the real debt justified.
    2. Appeal and error <&wkey;l043(3) — False affidavit for attachment as to amount of debt heid not harmless.
    Where affidavit of attachment was in part false as to indebtedness, and property was seized thereunder, error of the court in not instructing the jury that defendant was entitled to recover damages- for seizure of property in excess of that which the real indebtedness justified was not rendered harmless because the jury found against the defendant in the sum of $110.77 and the goods levied upon were sold pending trial, by agreement of the attorneys for $132; there being claim that the goods were damaged by rough handling and by rodents.
    3. Attachment <&wkey;375(3) — Value of goods for purpose of recovering damages for excessive attachment stated.
    The amount at which attached goods were sold under agreement of counsel pending trial does not necessarily determine the value of the goods at the date of seizure under a writ of attachment for the purpose of ascertaining damages suffered by defendant by reason of an excessive seizure, since the value should be determined as of the date of seizure, instead of at a subsequent date.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by the Corsicana National Bank against J. A. Lancaster and others. From a judgment of the Court of Civil Appeals (229 S. W. 580), affirming a judgment for plaintiff, defendants bring error.
    Judgment reversed, and cause remanded for new trial.
    J. S. Simkins and Callicuth & Johnson, all of Corsicana, for plaintiffs in error.
    Richard Mays, of Corsicana, for defendant in error.
   SPENCER, P. J.

Defendant in error, Cor-sicana National Bank, sued J. A. and A. B. Lancaster and M. A. Cox to recover the amount of two promissory notes; one for the sum of $73.25, signed by J. A. and A. B. Lancaster, and the other for the sum of $61.-50, signed by J. A. Lancaster alone.

Defendant in error alleged that both notes were secured by a chattel mortgage upon certain personal property described therein, and also secured by the transfer to it of three certain vendor’s Hen notes of the aggregate amount of $1,200, executed by M. A. Cox, payable to the order of J. A. Lancaster. Defendant in error alleged that in pursuance of a conspiracy entered into by and between J. A. and A. B. Lancaster and M. A. Cox to defraud and swindle it, it was induced to extend the credit represen ted by the notes sued on, and to aecept as security the notes transferred to it, which were represented as being of their face value, when in fact they were wholly insufficient to secure the loans made.

A. B. Lancaster answered by general and special demurrers, general denial and plea of non est factum as to the two notes. Claude-E. Lancaster and Horace C. Lancaster, minors, sons of A. B. Lancaster, intervened, each claiming a one-fourth interest in the stock of goods levied upon under a writ of attachment as the property of A. B. Lancaster.

By way of cross-action, A. B. Lancaster,. Claude E. Lancaster, and Horace O. Lancaster alleged that at the time of the commencement of the suit and in connection with it' defendant in error filed its affidavit and bond for attachment, and caused a writ of attachment to be wrongfully, illegally, and without probable cause issued and levied upon certain personal property belonging to them of the reasonable market value of $400. They asked for actual damages in the sum. of $800 and exemplary damages in the sum of $5,000.

M. A. Cox and J. A. Lancaster made default. The cause was submitted to a jury-on a general charge, and the jury found in favor of defendant in error against J. A. Lancaster for $91.65 and a foreclosure of the-chattel mortgage lien; for defendant in error against M. A. Cox for $100 attorney’s fees on the vendor’s lien notes and a foreclosure-of the vendor’s lien; for defendant in error against A. B. Lancaster and J. A. Lancaster on the $73.25 note, with interest and. attorney’s fees. Its verdict upon the cross-action reads:

“We further find that the statement made by E. N. Johnson in affidavit bond for attachment, No. 9735 was true as to the $73.25 note-(paragraph 6 of the court’s charge), and had-legal right for attachment.”

The judgment followed the verdict, and in. addition it decreed that A. B. Lancaster, C. E. Lancaster, and H. C. Lancaster take nothing against defendant in error by their plea, in reconvention. Upon appeal by A. B. Lancaster, C. E. Lancaster, and H. 0; Lancaster-the judgment was affirmed. (Tex. Civ. App.) 229 S. W. 580. From this judgment they prosecute this writ of error.

In the affidavit upon which the attachment is predicated, it is averred that A. B. Lancaster is Indebted to defendant in error, upon two promissory notes (being the notes-sued on) in the aggregate sum of- $220.98. The court charged the jury In effect that, if they found that A. B. Lancaster signed the $73.25 note, or if he induced defendant in error to lend- J. A. Lancaster the $61.50 evidenced by the note, and agreed to’ sign the note, or if he entered into a conspiracy with J. A. Lancaster and M. A. Cox to induce, and did induce, the bank to loan J. A. Lancaster money on worthless security and collateral, to then determine whether the statement made in the affidavit as the ground for the issuance of the attachment was true; and that, if they found the statement untrue, then the attachment was illegally and wrongfully sued out, and, if they so found, to find for A. B. Lancaster and H. O. Lancaster and C. E. Lancaster the amount which they found was the value of the goods taken under the attachment, with interest from the date of the attachment to the date of trial.

Plaintiffs in error objected to the charge because it submitted to the jury for its determination the liability of A. B. Lancaster as to the $61.50 note, contending that the pleadings did not aver that he ever agreed to sign or promised to pay it. The further objection was made to the charge that it failed to instruct the jury that the uncon-tradicted evidence showed that the liability of A. B. Lancaster was in any event much less than $220.98 at the time of suing out the writ of attachment, and therefore the affidavit was literally and substantially untrue, and entitled plaintiffs in error to recover their actual damages.

The objection to the charge was further emphasized by a special reguested charge to the effect that, if the jury found that A. B. Lancaster was liable on the $73.25 note, but not liable on the $61.50 note, it would render the affidavit for attachment substantially untrue, and constitute an abuse of the attachment process. They also requested a peremptory instruction to the effect that, as the affidavit for attachment was untrue according to the uncontroverted evidence, and therefore wrongful, to return a verdict for the plaintiffs in error. Both of these special charges were refused.

In our opinion the Honorable Court of Civil Appeals correctly held that the court did not err in submitting to the jury for its determination, in connection with the plea in reconvention, the issue of liability of A. B. Lancaster upon the $61.50 note. The allegations of the petition charging a conspiracy to defraud and swindle were sufficient to raise the issue as to his liability, and it was proper to have it determined by the jury.

It is our view, however, that plaintiffs in error were entitled to have the jury instructed that if the affidavit was false in part, and by reason of such falsity property in excess of the real indebtedness was taken, plaintiffs in error would be entitled to reeov- ' er damages for the seizure of property in excess of that which the real indebtedness justified. Wallace v. Finberg, 46 Tex. 35; Stiff v. Fisher, 85 Tex. 556, 22 S. W. 577; McKee v. Sims, 92 Tex. 51, 45 S. W. 564.

The objections to the main charge and the special requested charges were sufficient to call the court’s attention to the defect of the general charge. The Court of Civil Appeals seems, however, to have treated this error as harmless, because the amount of the note, including interest and attorney’s fees, for which the jury found A. B. Lancaster liable, aggregated $110.77, while the goods levied upon were sold, (pending trial, by agreement of the attorneys for $132. The agreed amount at which the goods were sold does not necessarily determine the value of the goods at the date of seizure under the writ of attachment. The value of the goods seized under a writ of attachment is to be determined as of the date of seizure, instead of at the subsequent date of sale. Gilmour v. Heinze, 85 Tex. 76, 19 S. W. 1075.

The goods were taken under the attachment writ on March 27, 1917, and on May 21, 1917, sold for $132. Plaintiffs in error alleged that the goods were damaged by rough handling to the extent of $50, and that a large part thereof was damaged‘by rodents while in a warehouse selected by the sheriff, who held the goods in virtue of the writ of attachment. They alleged that the reasonable market value of the goods at the time of seizure was $400.

There was evidence offered by plaintiffs in error in support of the amount alleged. There was no finding by the jury, however, as to the reasonable market value of the goods at the date of its seizure. Under the court’s charge the jury was required to determine the reasonable market value of the goods attached, only in the event that the attachment was illegally sued out, and‘were not required to return a finding if the affidavit was false in part. In view of the finding that the affidavit was true only as to the $73.25 note, a finding as’ to the value of the goods at the date of seizure was necessary to the rendition of a proper judgment. For this error the cause should, we think, be remanded for another trial.

We recommend, therefore, that the judgments of the Court of Civil Appeals and of the district court be reversed, and the cause remanded for a new trial.

OURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

We approve the holding of the Commission of Appeals on the question discussed in its opinion. 
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