Stansell & Younger v. Cleveland , 64 Tex. 660 ( 1885 )

Willie, Chief Justice.

The sole question in this case is: Was the attachment sued out through malice and without probable cause ?

As bearing upon the question of malice in suits like the present, the following general principles seem to be well recognized:

“ In a legal sense, any unlawful act done wilfully and purposely to the injury of another, is, as against that person, malicious.” 2 Greenl. on Ev., sec. 453.

To sustain an averment of malice in a suit of malicious prosecution, the plaintiff must show that the charge against himself, upon which the suit is based, was wilfully false. Malice may be proved by direct evidence or it may be inferred from circumstances. Id.

It may be inferred by the jury from the want of probable cause. This, however, is not an inference of law, but is “ an implication subject to be repelled by facts and circumstances indicating a fair and legitimate purpose and honest pursuit of a claim believed to be just.” Culbertson v. Cabeen, 29 Tex., 247.

Probable cause for the prosecution of a civil suit “ may consist of such facts and circumstances as lead to the inference that the party was actuated by an honest and reasonable conviction of the justice of the suit.” And “ it must appear that the facts, or so much of them as were sufficient to induce the belief, were communicated to the defendant before he commenced the prosecution of his suit.” Id., 454.

The attachment in this case was sued out on Sunday the 16th of March, 1884. The bond was made the day before, at Houston; but the affidavit was not made until the 16th, and from that time must date such knowledge of facts as the appellee possessed, and upon which he acted in commencing the attachment proceedings. This affidavit was made at Corsicana, by the appellee’s agent; but as the appellee is to be held liable for the acts of this agent, he is entitled not only to the benefit of his own knowledge, but also that of the agent as to facts justifying the attachment.

What were the facts and circumstances in reference to the conduct and affairs of Stansell & Younger which were known to Cleveland or his agent at the time of suing out the attachment? The affidavit stated that the defendants Stansell & Younger had disposed of their property with intent to defraud their creditors. The affiant knew that the appellants had been forced to execute a note, the amount of which, together with ten per cent, attorneys’ fees, could, without notice, be converted into a judgment in any court having jurisdiction of the subject-matter. This was in itself evidence of bad commercial credit and a want of confidence on the part of the payees in the financial integrity of the appellants. This note had been paid, but the affiant did not know it. He knew, too, that Bernheim Bros. & Co. had sued out an attachment against Stansell & Younger, but did not know that their debt had been paid. This was a further evidence of the suspicion with which they were regarded by their creditors. Cleveland had received a dispatch from his attorneys at Corsicana in reference to his debt against Stansell & Younger, which caused him to send his agent there to look after it. Upon the agent’s arrival he finds the entire real estate of the firm, which constituted the bulk of their property, mortgaged to other creditors; no debts paid by them so far as he knew; the United States marshal about to seize their goods under process of attachment; and other creditors looking on and awaiting the development of events, and apparently ready to attach at a moment’s warning, and if they attached first, Cleveland would probably lose his debt. These facts showed also that other creditors believed that a cause of attachment existed against the firm. When we add to these the fact that they had refused but a short time before to secure Cleveland’s debt, but had secured others before and afterwards; and that they had apparently paid no debt with the proceeds of the sales of their property, but disposed of them for their own benefit, we can hardly say that there was not sufficient evidence to satisfy Cleveland that they had disposed of their property with intent to defraud their creditors. If the jury had so found, we certainly should not have disturbed their verdict.

The only particle of evidence which could have justified the jury in implying malice was the fact that Cleveland had examined the records a short time before, and was satisfied with the condition of the appellants’ affairs. But it is not shown that any mortgage was on record at that time, except, perhaps, that of Willis & Bro. At the date of the attachment, their whole real estate was covered with mortgages. That Cleveland was satisfied, at the date of examining the records, does not, therefore, show that he had any reason to be satisfied at the time he sued out the attachment.

It is clear that no express malice against the appellants was proved. Indeed, the appellants do not seem to contend that such malice existed.

Admitting that want of probable cause was established by the evidence, which is exceedingly doubtful, the facts we have detailed show plainly that, if the appellee proceeded without sufficient cause, his conduct was not influenced in the least by malice. He had done nothing wilfully and purposely to the injury of appellants, and he had made no charges against them which he had reason to believe were false. His conduct showed a fair and legitimate purpose to honestly pursue, a just claim against his debtors. Had the jury inferred malice, under the circumstances, this court would have set aside their verdict as unsupported by any evidence whatever.

This being the case, it follows that the charge of the court complained of in the tenth assignment of error, whilst erroneous, did no damage to the appellants, and could have had no effect upon the verdict of the jury. There was no proof of any species of malice whatever; and, under any charge that the court might have given, the jury were bound to find for the appellee; and if they failed to do so, this court would have reversed the judgment based upon their verdict. Any charge defining malice correctly would have been inapplicable to the case, and the appellant would have derived no more benefit from it than from the erroneous one given to the jury.

This disposes also of the second assignment of error. If there was no malice, the testimony as to profits was inadmissible. The appellants having no case on that question, had no right to prove vindictive damages of any kind whatever.

As to the admission of the telegram from appellants to Cleveland, it seems to have come from the party to whom it was directed, and there was no showing that it had been in any manner altered after it was received; and the original dispatch had been destroyed. But if those were not sufficient reasons for receiving it in evidence, it is enough to say that there was no proof to show malice, and this would have been but cumulative evidence upon a matter already proven beyond all doubt, and hence could not have influenced the verdict in any manner whatever.

We do not find in the statement of facts, the petition, affidavit, bond, or writ of attachment in the case of August Bernheim & Bower v. Stansell & Younger; and hence it is not necessary to consider the exception to their introduction. Although the court overruled the -objections to their admission, they do not seem to have been introduced; oral proof that the writ was sued out was produced; but to this no objection seems to have been made.

None of the objections based upon the allowance of attorneys’ fees are well taken. These fees were to become part of the debt in case of suit, and are expressly claimed in the petition. The answer admitted all the indebtedness alleged in the petition which included these fees. It matters not that the suit was instituted before the debt was due. The debt was not paid at maturity, and this authorized the plaintiffs to proceed to judgment upon the note, and that authorized the collection of the attorneys’ fees. The language of the note is that these fees are to be paid if the note is collected by law; and this note was so collected.

The amount found by the' jury, and for which judgment was rendered against the defendants and their sureties in the replevy bond, is not as much as was shown to be due in the affidavit for attachment. Neither is it as much as the principal of the debt sued on. The court was authorized to apply the $500 found for the defendant to the payment of interest and attorneys’ fees before deducting any portion of it from the principal debt. For that the sureties were certainly bound.

There is no error in the judgment and it is affirmed.

Affirmed.

[Opinion delivered November 27, 1885.]