Baines v. Ullmann, Lewis & Co. , 71 Tex. 529 ( 1888 )

Stayton, Chief Justice.

The appellees brought an action for debt against appellant and sued out a writ of attachment, based on an affidavit that he had disposed of a part of his property with intent to defraud his creditors.

The attachment was levied on a stock of goods which were in the custody of the sheriff when appellant filed a motion to quash the attachment on account of an informality which would have been fatal to the validity of the writ; but, before that motion was acted upon, the appellees filed an affidavit for attachment setting up the same grounds alleged in the first, executed the proper bond, and obtained another writ which the sheriff levied on the same goods seized under the first writ.

The defendant admitted the justice of the debt sued for, but, in reconvention sought to recover damages on the ground that the writ of attachment was wrongfully sued out.

There was a judgment for the plaintiffs for the amount of the debt sued for and against the defendant on his plea in re-convention.

It is claimed that the levy of the first or second writ of attachment was necessarily wrongful, without reference to whether the ground made the basis for attachment existed, and that the court should have so instructed the jury.

If the ground for attachment existed, when the first attachment issued, it was one in its nature continuing, and neither writ could be said to have been wrongfully sued out.

The first, on account of a clerical inaccuracy, would have been quashed, but this did not make the suing out of the writ wrongful or destroy the ground made the basis for the second writ. Had there been a judgment in favor of the appellant on his plea in reconvention, in estimating the damages to which he would have been entitled, so far as this would be affected by date of seizure, the first seizure, it would seem, ought to be looked to.

On a question of costs, all costs incurred in reference to the first writ had it been quashed would doubtless have been taxed against the parties suing it out, but no question of that kind arises on the record before us.

It appeared that immediately before the action was instituted the appellant, who was a retail merchant, sold to Mary E. Baines goods amounting in value to about one thousand dollars, and it was claimed by appellees that this sale was made with intent to defraud creditors.

Appellant, however, testified that Mary E. Baines had for merly been his wife, from whom he had been divorced, and that he had become, and was, indebted to her on a settlement of their property rights in a sum as large or larger than the value of the goods sold by him to her, and that the goods were in good faith sold to her in settlement of so much of the debt due to her.

There was no evidence tending to show that the testimony of the appellant, in this respect was not true, but no other witness was called to prove his indebtedness to his former wife at the time of the sale of the goods, though there was another witness who testified to an indebtedness from him to his former wife, amounting to more than the value of the goods sold, and existing about three years before the trial of this cause.

So standing the evidence as to the real consideration for the sale of goods claimed by appellees to have been made fraudulently, the court below gave the following charge:

“In passing upon the issue of whether the alleged debt to Mary E. Baines was real, honest and pre-existing, and whether the act of the defendant in disposing of his goods in payment of the same was in good faith or otherwise, the jury are authorized to consider the nature of said facts with reference to their susceptibility of full proof or the contrary, and the opportunities and facilities, or want of them, of the defendant to establish said facts, if true, by evidence- other than and in addition to his own statement; as also they may consider all the circumstances surrounding the transaction and the testimony of the defendant in relation thereto. And if, upon a full and fair consideration of all the circumstances, they are not satisfied that the defendant disposed of his said property in good faith in payment of a real debt, and with no intent to defraud his creditors, they will find for the plaintiff on this issue.”

The giving of this charge is assigned as error. In cases in which the inquiry is whether a transaction was fraudulent, a jury may doubtless look to all the direct and circumstantial evidence before them for the purpose of ascertaining the truth, and, if a party seems to rely on proof, weak in its nature, when the surroundings indicate that evidence is easily accessible to him, by which an act suspicious in its surrounding may be clearly shown to have been honest and in good faith, there is no doubt that a jury may take into consideration the fact that such evidence is not produced. The charge complained of, however, did not leave the jury to do this without any intimation as to the weight to be given to the evidence before them. There is nothing in the question to which the charge relates which denies to the testimony of one witness the" capacity to make full proof of the existence or non existence of a debt, and if the jury believed the testimony of the appellant, they could not doubt that he was indebted to his former wife as stated by him.

In cases of this kind a jury must be governed by the preponderance of the evidence, and it is not clear what was meant in the charge by full proof, but from another part of the charge complained of the jury were authorized to believe that only such proof as might satisfy the minds of the jury could be considered full proof. Thus used, the terms “full proof” and proof “satisfactory” would be understood by a jury to mean a higher degree of weight of evidence than a preponderance.

The charge was an intimation to the jury that the testimony of the appellant alone would not be sufficient to authorize a verdict in his favor; if, from the nature of the facts to be proved, it appeared to the jury that he might have brought other testimony to prove the same facts. We think such a charge violated the statute which prohibits a judge to charge upon the weight of evidence. A charge somewhat like this was given in Cox v. Shropshire (25 Texas, 117), which involved a question of fraudulent conveyance of property, but in that case there was no proof whatever made of consideration for the conveyance claimed to be fraudulent, and the court simply informed the jury that absence of proof, when it was in the power of the paroy who needed it to offer it, was a fact the jury might consider. The charge in that case was not upon the weight of evidence, but was a declaration that a failure to produce any evidence of a fact showing an honest transaction, when the party needing such evidence had it in his power to produce it if it existed, was a fact to which a jury might look.

There is another part of the charge complained of that is erroneous, in that it required the jury to be satisfied that the appellant sold the goods to his former wife, which were claimed to have been fraudulently conveyed in payment of a debt really due to her, and with no intent to defraud his other creditors, or otherwise to find for the appellees.

It was not necessary that the evidence should have been sufficient to satisfy the jury of the facts, in order to entitle appellant to a verdict, for he would have been entitled to this if upon a consideration of all the evidence the jury had been of the opinion that the facts necessary to a recovery by him were established by a preponderance of the evidence.

Evidence is said to satisfy the mind when it is such as frees the mind from doubt, suspense or uncertainty. The jury may have believed that the evidence preponderated in favor of the existence of the facts, which would make the sale of goods by appellant to his former wife valid against other creditors, yet, under the charge, the jury would have felt bound to render a verdict against him if their minds were not freed from doubt and uncertainty by the evidence.

The other assignments of error relating to the giving of charges upon the matter of exemplary damages and to supposed omissions in the charges given, in view of the disposition that was made of the case by the verdict of the jury, are not to be considered.

One of the defenses urged to the plea in reconvention was that the writs of attachment were sued out with the consent, if not at the request, of appellant, and there was evidence tending to show that this was true.

The evidence, however, showed that what was done in this respect was done before the first attachment was sued out, and it is now insisted that evidence of that character did not authorize the court to submit to the jury whether the second attachment was sued out with consent of appellant.

If the appellant consented that his goods should be attached, or requested that this should1 be done, it ought to be understood that he consented an attachment should be made that would hold the goods, and if the first was informal, that the informality might be cured by the second.

His plea in reconvention was not filed until after the second writ of attachment was levied, and under the facts the evidence tended to prove, we are of opinion, that the court below did not err in submitting to the jury whether the appellant consented the attachments should be levied.

The charges requested by appellant and refused ought not to have been given in the unqualified terms asked.

On account of the errors noticed, the judgment will be reversed and the cause remanded.

Reversed and remanded.

Opinion delivered October 23, 1888.