Blankenship v. Berry , 28 Tex. 448 ( 1866 )

Donley, J.

—The judgment in this case must be reversed. The pleadings do not state such facts of fraud on the part of the appellant as authorize a judgment against him for the attorney’s fee. And the evidence does not disclose any fact, up to the time of the institution of the suit, of an impropriety on the part of the defendant that can be classed as a fraud. The negroes of the plaintiff were in possession of the defendant. They appear to have been on the defendant’s premises upon a former occasion when the plaintiff was there. It does not clearly appear why the negroes went to the defendant’s on the last occasion before the institution of the suit. As the proof shows that the negroes had been at defendant’s on former occasions when the plaintiff was there, in the absence of any proof showing how the negroes came to be on defendant’s premises, it is believed that the presumption arises that the negroes went to the defendant’s by direction of their owner, and by his consent remained there.

It does not appear that the defendant at any time set up any claim to the negroes, or denied the right of plaintiff to them. From his statement, which was given in evidence by plaintiff, it appears that a negro came for the slaves in controversy, (how long before the suit'does not appear;) that defendant would not let them go, but declared that, if plaintiff would come himself, or send a white man, he would let the negroes go. If the defendant was not satisfied that the negro who applied to remove the slaves from his possession had authority from the plaintiff, he might properly decline to deliver the negroes "then under his control until the plaintiff", in person or by his agent, having satisfactory evidence of his authority to act for the plaintiff, applied for the property. Demand may be made by an agent duly authorized, but such demand will not be sufficient, if the defendant bona fide refuse to deliver the goods, in consequence of his not being reasonably satisfied that the person who applies is properly empowered to receive them. (Chitty on Plead., 158.)

It is not believed that the evidence discloses any fraud on the part of the defendant that gave to the plaintiff a cause of action against him, and authorized a judgment against him for $200, or any amount, on account of plaintiff having employed counsel to prosecute suit against the defendant. It is not perceived that there was any real necessity for the suit; certainly not, if the negroes would have been delivered oiq demand by the plaintiff, or by some one so authorized to act for him as to leave no reasonable doubt of his right to act for the plaintiff. The defendant had expressed his willingness to deliver the property, and it does not appear from any evidence in the cause that there was any ground to doubt his sincerity. He did not deny the right of the plaintiff when sued for the property; and, so far as the record discloses, it is believed that his defense to this action was to defeat a judgment against him for damages. It was not improper for him to make this defense, and the record does not disclose such a case of fraud as to authorize a judgment against him for such an amount as might'be reasonably required to secure the services of an attorney to prosecute a suit against him for the alleged illegal detention of the plaintiff’s slaves. (Bracken v. Neill, 15 Tex., 113, 114; Neill v. Newton, 24 Tex., 202, 204.)

The petition in this case properly alleged the value of each slave, and the verdict finds the value of each separately. The judgment provides, in the event that the slaves cannot be had, that the plaintiff recover of the defendant and his sureties on his bond given to replevy the property the sum of $2,200, the assessed aggregate value of said slaves, and that for this he have execution. The judgment should have conformed to the verdict. If there had been a failure to deliver one of the slaves, the judgment,does not furnish information upon which an execution could properly be issued. In the altered condition of the property of the country, it is believed that this error is now of little practical importance in this case.

The judgment is reversed, and the cause

Remanded.