Ackerman v. King , 29 Tex. 291 ( 1867 )

Smith, J.

The plaintiffs in error replevied the steamboat Fort Henry on the 24th day of November, 1855, and gave bond to King, conditioned to save him harmless from all loss, damages, debt, and expenses that might thereafter be incurred for or on account of the interest of King in the boat. Upon the libel and complaint of Jacob Porter, made in the federal court at Galveston, the boat was seized, under admiralty process of attachment, and, on the 11th March, 1856, was condemned to he sold, in satisfaction of the claims of Porter and other intervenors, amounting to $4,391 21, costs included. The auditor reports, that it did not appear that more than $581 14 of this amount was for liabilities incurred before the date of the replevy of the boat. She was sold on the 15th March, 1856, by the United States marshal, at public auction, and purchased by the defendants below, Ackerman & Baldridge, for $6,000, which was applied to the payment of the debts; and the residue was paid over to the defendants below, including that part belonging to the plaintiff", King. This seizure, condemnation, and sale were set up by the defendants below in this case, and they contended that the plaintiff, King, was bound by the amount for which the vessel was sold in estimating the amount due him. This view of the case the court refused to give the jury, but instructed them that the rights of the parties were to he determined as they stood at the date of the replevy, in November, 1855, and that the defendants could not claim credits for any debt contracted, loss, or sacrifice on the boat, sustained after that date. In this we concur, and are of opinion, that the court was correct in holding that the plaintiff was not bound by the proceeding and sale in the federal court, after the replevy of the boat, in estimating the amount he was entitled to recover. The district court of Washington county had jurisdiction of the matters in controversy in this suit, and the defendants had taken the boat out of the custody of the law, and given bond, securing the interest of King 'in it at that date; and after that he could not, with any show of justice, be held bound by losses and sales made of the boat. She may not have been fairly sold, as was contended; and we must say some evidence tended to show the whole proceeding and sale were gotten up, at the request of Ackerman & Baldridge, for the purpose and intent to deprive King of his interest in the boat. But if the proceeding and sale had all been fairly made, it would be wrong to hold King bound by the amount she sold for as the criterion of her value at the date of the replevy; for she may have greatly deteriorated after the replevy, by use or decrease in value, for causes beyond his control, and for which he should not be held liable.

It is urged, that the verdict is excessive, and unsupported by evidence.

It was shown that the boat cost $13,000, and at the date of the replevy, and a few months after the purchase, had undergone no material injury; that King was interested in the boat $3,463 63-| of that amount, paid by him, and that the boat was indebted to him for wages and advances $897; and, upon calculation, it will appear that, after deducting from the costs of the boat all the debts due the defendant and other persons, the amount of King’s share in the residue, when added to what is due him of the $897 debt, he should have a verdict for at least as much as was found by the jury; and in this estimate the defendants have the benefit of $822 09 due other persons, not paid by them, as appears by the auditor’s report. This may have been an error, but in favor of the defendants, and for which the cause will not be reversed.

There being no error apparent for which the judgment will be reversed, it is

Aeeirmed.