Middlebrook & Bros. v. Zapp , 79 Tex. 321 ( 1891 )

GAINES, Associate Justice.

In Middlebrook & Bros. v. B. L. Zapp and L. & H. Blum, 73 Texas, 29 (which suit was brought in the court below by the appellants as a partnership composed of I. Middlebrook, R. 0. Middlebrook, and Mrs. Julia Meyer, the wife of C. W. Meyer), it was held that the husband, who only joined as party plaintiff pro forma, was the real partner, and party at interest in the subject matter of the litigation, and that the plaintiffs could not recover in that suit. For that reason the judgment for the defendants was affirmed. The present action was brought by the Middlebrooks and 0. W. Meyer as partners to recover upon the same cause of action proved in the former suit. The grounds of the action are very fully stated in the opinion in that case, and need npt be here repeated.

The evidence showing that the levy was made by the actual seizure of a part of the partnership property, the court instructed the jury as follows: “From the undisputed evidence in this cause it appears that the levy complained of was not illegal, that the property seized was not in excess of the interest of the defendant in execution in the partnership property, and that whatever injury the plaintiffs may have sustained is not the result of any unlawful or wrongful act of the defendants. You are therefore instructed to return a verdict for the defendants.” We are of opinion that the instruction was erroneous. In the opinion in the former case it is said: “Our statutes point out the mode of levying upon the interest of a partner for his individual debt. That mode not having been pursued in this case, and an unwarranted trespass having been committed, the defendants in this suit made themselves liable to the owners of the goods for whatever damages they sustained by reason of the unlawful seizure. Rev. Stats., art. 2295.”

But in order to support the ruling of the court below, counsel for appellees insist in effect that this construction is not correct; that the language of the article cited is merely permissive, and that it was not intended to prohibit a levy upon partnership property for the debt of one of the partners as at common law. Counsel in support of his contention submits that the article in question should be construed like article 2293, in reference to a levy of live'stock running at large. But in the construction contended for we do not concur. The language used in article"2293 is essentially different from that under consideration. That article reads in part as follows: “A levy upon horses, mules, jacks, jennets, horned cat-tie, or hogs running at large on a range, and which can not be herded and penned without great inconvenience and expense, may be made,” etc. The words “may be” are-permissive, and admit of the construction that the remedy was cumulative upon that of the common law, and were intended to give the plaintiff or the sheriff the option of making the levy either in the mode there pointed out or by-an actual seizure of the property.

Delivered January 23, 1891.

Not so, however, with article 2295. There the language is, “A levy upon the interest of a partner in partnership property is made,” etc., and indicates to our minds that it was the intention not only to provide that manner of levying upon such interest, but to exclude any other. The object of the statute was to protect the interests of the partner or partners who are not defendants in the execution; and the provision is eminently wise and just. At common law, according to the better opinion, only the interest of the partner against whose property the writ issued which remained after the debts'were settled could be sold; and this could ordinarily be ascertained only by an account, which frequently had to be enforced by a bill in equity. A similar remedy may be applied under the present law, and, as it seems to us, is practically as effective as the procedure under the former rules.

But appellees insist that since the goods were purchased by Meyer at the execution sale, and the Middlebrooks upon the settlement of the partnership business received their full share of the assets as if the levy had not been made, and the proceeds of the sale went to pay Meyer's debt, no damage was shown. 1 Even should it be held that the fact that Meyer bought and received the goods relieved the defendants from liability for the difference between the amount for which they were sold and their value at the time of the seizure (a question we do not now determine), there was other ‘damage for which the plaintiffs were entitled to. a recovery. The closing of the house, the consequent cessation of business, and the detention of the goods were wrongs for which they were entitled to compensation. We apprehend that serious questions may arise upon another trial as to the elements and measure of damages, but we shall not undertake to anticipate them and decide them in advance.

. There was no error in excluding testimony as to the probable effect' of the levy upon the credit of plaintiffs. Conceding for the sake of the. argument that the loss of credit is a proper element of damage in the case—if such was the result of the levy—it was a fact capable of direct proof and could not properly be established by mere testimony that such a loss was likely to be a probable effect of the seizure.

The judgment is reversed and the cause remanded.

Reversed and remanded.