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the time the execution was
levied upon them, and consequently appellants were not entitled to any damages for the levy. The judgment is affirmed.
from the date of the judgment, including the items above mentioned, the judgment will be affirmed, at appellee's cost; otherwise, it will be reversed and remanded.
STRAUSS et al. v. DUNDON. (Court of Civil Appeals of Texas. June 20,
1894.) WRONGFUL ATTACHMENT-EXEMPLARY DAMAGES
- ATTORNEY'S FEES. 1. Where the attachment was sued out by an attorney, exemplary damages cannot be recovered without proof that the attachment plaintiffs knew of the attorney's malice, and ratified his malicious acts.
2. Attorney's fees are not recoverable as damages.
Appeal from Hunt county court; W. H. Ragsdale, Judge.
Action by L. M. Dundon against S. Strauss & Co. for damages for wrongful attachment. Judgment for plaintiff. Defendants appeal. Affirmed on conditions.
Evans & Hargrave, for appellants. Montrose & Clark, for appellee.
MOREAU V. DU BELLET. (Court of Civil Appeals of Texas. May 30,
1894.) RECEIVER APPOINTED BY FOREIGN COUNTRY
RIGHT TO SUE. A receiver appointed by a court of a foreign nation cannot bring an action in Texas as such receiver.
Appeal from district court, Dallas county; R. E. Burke, Judge.
Petition by mandamus by E. Moreau, liquidator of the Société Foncière et Agricole des Etats Unis, a corporation under the laws of France, against Henry P. Du Bellet.. Judgment for defendant, and plaintiff appeals. Affirmed.
Fitzhugh & Mozencraft, for appellant. R. T. Brownrigg and A. J. Bail, for appellee.
LIGHTFOOT, C. J. In this case there is a recovery by appellee against appellant, not only for actual damages, but for $250 exemplary damages and $100 attorney's fees. The affidavit and bond were made and the attachment sued out by the attorney of appellants; they being residents of St. Louis, Mo. It was shown that the appellants afterwards knew of the attachment, and bought in the property when sold under the attachment proceedings; but it was not shown that the appellants knew of any bad motive on the part of their attorney, if any there was. In order to charge the appellants for exemplary damages, it was necessary that the attorney should have sued out the writ maliciously or without probable cause, so that malice would be imputed to him in law, and that the principal, with knowledge of the facts, ratified the malicious acts. In the case of Tynburg v. Cohen, 67 Tex. 225, 2 S. W. 734, Judge Stayton says that, if the act of the agent was the result of evil motive, it was necessary that the principal "had knowledge of such facts as showed the wrongful acts of their agent at the time they accepted and approved of his acts." Willis v. McNeill, 57 Tex. 466; Wallace v. Finberg, 46 Tex. 37; Brown v. Bridges, 70 Tex. 665, 8 S. W. 502; Rankin v. Bell, 85 Tex. 35, 19 S. W. 874. No such knowledge was shown in the principals in this case, and the recovery of exemplary damages was erroneous.
The recovery of attorney's fees was not authorized in such a case, and cannot be sustained. Landa v. Obert, 45 Tex. 510; College v. Davis, 47 Tex. 136; Yarborough v. Weaver (Tex. Civ. App.) 25 S. W. 468.
If the appellee shall, on or before June 27, 1894, remit the sum of $350, with interest
RAINEY, J. On May 1, 1891, appellant instituted suit in the fourteenth judicial district court, at Dallas, against the appellee. Appellant, by his original petition, alleged that he was a citizen of Paris, republic of France; that the Société Foncière et Agricole des Etats Unis is a private corporation incorporated under and by virtue of the laws of the republic of France; that appellant is the duly appointed and qualified liquidator of said corporation, and has been since November 4, 1882, at which time he was duly appointed such liquidator by a court of competent jurisdiction in France; that as such liquidator he has full power and authority to manage and control the affairs of said corporation, adjust all its business, and sue for and collect all its debts due to it, and to control the collection of all debts due to it. Appellaut further alleged that appellee had possession of certain books, papers, etc., belonging to said corporation; that he fraudulently represented him self to be the agent of said concern, was collecting money belonging to same, and appropriating it to his own use, etc. A mandamus was prayed for, requiring appellee to bring the books, papers, etc., into court; and an injunction was prayed for, enjoining him from "assigning or negotiating said notes, accounts, books, papers," etc. These prayers were temporarily granted. The appellee, among other things, answered by a plea in abatement, in substance: "That plaintiff sues as liquidator of the Société Fonciére et Agricole des Etats Unis, and that such office of liquidator is unknown to the laws of Texas; that said petition does not show the order of any court appointing plaintiff as said liquidator, or giving him authority to sue as such liquidator; that plaintiff appears from the face of said petition to have been appointed and to be now acting as liquidator by a for
eign court having no jurisdiction over the tude before the courts of this state than they. property claimed by plaintiff, and whose au- We are of opinion that appellant was not enthority is not recognized by the laws which titled to recover, in the capacity in which he govern this court." Defendant further plead-sued, and that the action of the district court, ed that said appellant was appointed as such in so holding, was correct. The judgment liquidator of said Société, etc., by an order of is affirmed. a court of the republic of France, being the tribunal of commerce of the department of Seine, holding court at Paris, republic of France, and, as the creature of said foreign
A, J. ANDERSON ELECTRIC CO. V. CLEcourt, appellant had no standing in the courts
BURNE WATER, ICE & of the United States or of the state of Texas;
LIGHTING CO. that said power did not empower plaintiff to (Court of Civil Appeals of Texas. June 27, sue either in France or elsewhere,--which
1894.) said plea was sworn to by defendant. On
ELECTRIC PLANT-ACTION FOR PRICE-DEFENSEShearing the court sustained said plea in DEFECTS IN CoxsTRUCTION-SET-OFF-DAMAGES. abatement, and, appellant declining to amend, 1. In an action to recover the price of an said cause was dismissed at his cost, to which electric plant, an answer alleging that the plant he excepted, and brings the cause here by ap
was "defective as to material, inferior as to peal.
workmanship, poorly constructed, and not such
as was contracted for," and containing specific If appellant, as liquidator, had no standing allegations which show in what particulars the in court, the action of the court below was plant is claimed to be defective, is not too proper, and it is unnecessary to consider any
vague and indefinite. other question.
2. An allegation in the answer that "the We take it that the office of
switch board furnished was unsafe and dangerliquidator, as alleged in the petition, performs ous," and such as the person to whose inspecthe same functions as does the office of re- tion it was agreed the plant should be submitceiver, under our law. If so, under the au
ted "would not approve," is too vague, and an
exception thereto should be sustained. thority of Moseby v. Burrow, 52 Tex. 402, he 3. Where a contract for the purchase of mahas no right to act in his official capacity out- chinery is made directly with reference to a side the jurisdiction of the tribunal that ap
certain use to be made of the machinery, and
with reference to contracts already made by the pointed him. Bonner, J., delivering the
buyer, whereby he would receive a fixed profit, opinion of the court in that case, said: “A which is known to the seller, such profits may receiver is but an officer of the court which
be offset in an action for the price, where the appoints him, and it would follow, upon prin.
seller wrongfully fails to comply with the con
tract without fault on the part of the buyer. ciple, and which is abundantly sustained by 4. A written contract may be modified by authority, that he cannot act in his official a verbal agreement, though the contract recites capacity outside the jurisdiction of the court
that no modifications shall be made, except in
writing. by which he was appointed;" citing Booth v.
5. When, in an action to recover the conClark, 17 How. 322, which clearly lays down tract price for the erection of an electric plant, the same doctrine. In High, Rec. $ 239, the
defendant claims that the contract was not exefollowing is enunciated as the true rule: “Up
cuted according to the specifications, in that cer
tain wiring was not done, and the court charges on the question of the territorial extent of that defendant can recover the cost of coma receiver's jurisdiction and powers, for the pleting the wiring, it is error to refuse an inpurpose of instituting actions connected with struction that the jury should deduct from
such sum any dainages arising from the refusal his receivership, the prevailing doctrine estab
of defendant to point out to plaintiff the points lished by the supreme court of the United for putting up the wiring. States, and sustained by the weight of au- 6. In such an action, defendant cannot rethority in various states, is that the receiver
cover the difference in value between the plant has no extraterritorial jurisdiction or power
furnished and that contracted for, and at the
same time rescind the contract. of official action, and cannot go into a for- 7. Where the statute provides that coneign state or jurisdiction, and there institute tracts of sale which stipulate that the title a suit for the recovery of demands due the
to the property shall not pass until the price is
paid shall be considered mortgages (Sayles' Cir. person or estate subject to his receivership. St. art. 3190a), and the vendor brings an action His functions and powers, for the purpose on such a contract for the price, and to foreof litigation, are held to be limited to the
close the mortgage, the jury should be instructed
that, in case they find for plaintiff, they should court of the state within which he was ap
also find for him as to the lien. pointed, and the principles of comity between 8. Where a contract for the building of an nations and states, which recognize the judi-electric plant provides that on its completion it cial decisions of one tribunal as conclusive
shall be inspected and passed upon by a certain
person, and such person declines to act, the in another, do not apply to such a case, and builder may show that the quality of the work will not warrant a receiver in bringing an is according to the specifications. action in a foreign court or jurisdiction."
9. Such person cannot delegate his authori
ty. This rule applies in this state to foreign ad
10. When a building contract for the erection ministrators and executors, when attempting of an electric plant provides that it shall be to act in their official capacity; and we see inspected by the electrician of the Texas Sur. no good reason why the receiver of a defunct
vey and Rating Bureau, and the electrician re
fuses to act, it cannot be shown that the plant corporation, appointed by a court of a foreign
did not comply with the rules and regulations nation, should occupy a more favorable atti- of the bureau.
11. Evidence varying a written contract is Texas, not later than 90 days from the date not admissible unless the equitable grounds for of this contract. The acceptance by you of changing the same are pleaded.
this proposal within five days from this date, Appeal from district court, Johnson county; and the approval of the same by the manJ. M. Hall, Judge,
ager of this company, shall constitute a conAction by A. J. Anderson Electric Company tract between yourselves and this company. against the Cleburne Water, Ice & Lighting It is expressly understood and agreed that Company. There was a judgment for de the title and right of possession of, in, and to fendant, and plaintiff appeals. Reversed. all of the machinery, apparatus, supplies, and
There is no brief or other appearance by property furnished under this proposal, or as appellee. The following statement of the is- additional thereto, shall be and remain in the sues by appellant is adopted: This suit was A. J. Anderson Electric Co., of Ft Worth, brought in the district court of Johnson coun- Texas, until fully paid for in cash. This ty on November 9, 1893, by appellant, A. J. instrument contains the whole proposal of Anderson Electric Company, to recover of this company, as finally fixed, and all other the appellee, Cleburne Water, Ice & Lighting statements and representations, if any, made; Company, the sum of $8,000,—the purchase and no changes or modifications of this agreeprice of an electric light plant alleged to ment, after its acceptance and approval, can have been furnished, sold, and delivered by be made, except by the manager of this comappellant to appellee under a contract there- pany, in writing. Respectfully, A. J. Anderfor entered into between the parties on or son Electric Co., by F. M. Henshaw, Mg'r. about May 17, 1893,--and also asking the "Accepted, May 17, 1893. Cleburne Water, foreclosure of a vendor's lien on the plant to Ice and Lighting Co. S. W. Lovelady, Pres. secure the payment of the purchase price. “Witness: L. W. Chase, V. Gray. The defendant answered, setting up, among “Approval: F. M. Henshaw, Mg'r.” other things, failure in the plant furnished to comply with that contracted for, and also
F. M. Brantly and Davis & McKoy, for appleading damages, in various sums, for such
pellant. alleged failure of compliance. The jury returned a verdict "for the defendant, and as- LIGHTFOOT, C. J. (after stating the sessing its damages at $1,460, viz. difference facts). The first assignment of error is as in the plant built and the one to be built, follows: “The court erred in overruling plain$873; on wiring in 235 incandescent lights, tiff's first exception to that portion of defend$587;" and the court rendered judgment ac- ant's answer averring that the plant furcordingly,---that plaintiff take nothing, and nished 'was defective as to material, inferior the defendant recover its damages aforesaid, as to workmanship, poorly constructed, and and costs of suit, and decreeing that plain- not such as was contracted to be furnished,' tiff recover of defendant the possession of the because the allegation was vague and indefiproperty under certain conditions. From nite." This assignment is not well taken. this judgment the plaintiff appealed.
The allegations objected to, if standing alone, The following is a copy of the offer in writ might be objectionable; but the pleader foling by appellant, and the acceptance by ap- lows it up with definite and specific statepellee, which constituted the contract be ments, in which it is shown in what particutween them:
lars the plant is claimed to be defective, in“Gentlemen: The A. J. Anderson Electric ferior, etc. Co., of Ft. Worth, Texas, propose to furnish, 2. The second assignment of error is that put up complete, in satisfactory running or- "the court erred in overruling plaintiff's speder, the following electric light plant, to wit cial exceptions to so much of said answer [here follows a description of the machinery), as set up that the switch board furnished
* * for the sum and price of ($15,500.00) was unsafe and dangerous, and such as the fifteen thousand five hundred dollars, paya- electrician of the Texas Survey & Rating ble as follows: (Here follows a statement Bureau would not approve,' because vague, of the payments.] * All deferred pay. indefinite, and failing to show wherein the ments to bear interest from date at the rate same was unsafe or dangerous, or why such of 8% per annum until paid. We agree to electrician would not approve the same.” furnish you with duplicates of the guaran- The pleading of such claimed defect is too ties hereto attached, properly signed by the indefinite, and the exception should have been manufacturers of the apparatus, viz. the Na- sustained. Hendrix v. Nunn, 46 Tex. 149; tional Electric Mf'g. Co., of Eau Claire, Wis., Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606. and the J. H. McEwen Mt'g. Co., of Ridge- 3. The third and fourth assignments obway, Pa.
We further agree to subject the ject to the measure of damages set up in the plant to the inspection and approval of the answer, by reason of the failure to furnish electrician of the Texas Survey and Rating the number of electric lights called for in Bureau, same to be paid for by us. We fur- the contract, especially the allegation that ther agree to have the plant in operation the defendant was to receive $2.50 per light within thirty days from the date of the ar- for them, and setting out the profits which rival of the boilers, engine, and electrical ma- defendant could have made upon such plant chinery; said machinery to be in Cleburne, if the same had been provided according to contract. In the case of Stark v. Alford, that he did waive it; and that the agreement 49 Tex. 275, there was a suit involving dam- was based on a valid consideration. The as. ages for the failure of certain mill machinery signment is not well taken. to meet the requirements of the contract. 5. The fifth assignment is as follows: "The The court, in passing upon the measure of court erred in charging the jury the defend. damages, says: "The first and leading ques- ant might recover damages for the cost of tion to be decided is whether the machinery putting up and wiring in the remaining arc delivered by the Washington Iron Works to and incandescent lights,' and at the same appellant was, in quantity, capacity, and time refusing to limit such recovery by refusquality, such as stipulated in the contract. ing to give plaintiff's fifth and seventh reIf not, appellant is entitled to a judgment quested charges, to the effect that the jury against said corporation, if it has been pro- should deduct from such allowance or damperly brought into court, for the difference age any cost or expense suffered by plaintiff of the value of the machinery actually de- from the neglect or default of defendant to livered and that contracted for. Wright v. point out or designate the places for the Davenport, 44 Tex. 161. This difference may putting up or wiring in such lights." The be shown by witnesses who are able to state charge of the court upon this point was as the difference, taking the contract price and follows: "If you believe from the evidence the expense of delivery as the basis for es- that the plaintiff furnished and completed timating the difference in value between the the electric plant as contracted for, as per machinery actually delivered and that con- the terms of said written contract, and any tracted for; or the difference may also be change of said contract, if any such change shown by satisfactory proof of the reason- there were, save and except putting up and able cost of supplying the deficiencies or re- wiring in a portion of the arc and incanmoving the defects of the machinery de descent lights, and that the machinery, malivered, if this has or could be done. If terial, and workmanship of that portion that there was frand, or an express warranty, was so completed was reasonably of the the measure of damages would of course character and kind contracted for, and if be different. But we see nothing in the the plaintiff then offered to, or was ready and record requiring a discussion of the rule ap- willing to, put up and wire in the remainder plicable to such cases, and certainly we are of said arc and incandescent lights, and that at a loss to conceive upon what ground the the defendant declined or failed to designate court held that appellant was entitled to the or point out the places in which to put up contingent and speculative damages which or wire in said remaining lights, and that the jury were authorized to find." We think the defendant then, on being requested by the rule there laid down is applicable, as a plaintiff to pay such cash payment, and to general rule, to cases of this character. But execute and deliver said purchase-money it must be conceded that in some cases it notes, failed or refused to do so, then you has been held that where a contract is made will find for the plaintiff the whole of the directly with reference to a certain use to price actually agreed upon between the parbe made of the machinery, and with con- ties as the price of said plant, less any damtracts already made by the buyer, whereby ages you may believe the defendant is entihe would receive a certain fixed and definite tled to recover, if anything, for the reasonprofit, which is known to the seller, then able cost of putting up and wiring in said and in such a case the court would be author- | remaining arc and incandescent lights, and ized to consider such profits, in measuring | less any reduction you may find the defendthe damages, if the seller wrongfully, and ant entitled to by reason of delay in tbe comwithout fault on the part of the buyer, failed pletion of said plant." This charge was • to comply with the contract. Porter v. Burk- clear, and easily understood, and set out the ett, 65 Tex. 386; Railway Co. v. Hill, 70 Tex. law applicable to the case, as far as it went; 51, 7 S. W. 659; Id., 63 Tex. 381; Express but at the request of appellant's counsel the Co. v. Darnell, 62 Tex. 639; Jones v. George, court should have gone further, and charged 61 Tex. 349; Hadley V. Baxendale, 9 Exch. the jury properly upon the points requested 353.
. The allegations of the petition are full, by appellant. This charge of the court was and it is evidently drawn in the light of the evidently based upon the theory of the plant authorities. The exceptions were not well being received by the appellee, and upon taken.
this theory the measure of damages given 4. The appellant excepted to so much of ap- in the charge was correct. But under it the pellee's pleading as set up a subsequent ver- jury found nothing for the plaintiff, but bal agreement between defendant and F. M. found for the defendant $1,460 damages, as Henshaw as to testing the machinery for a follows: Difference between the plant built certain length of time. The written con- and the one contracted for, $873; and for tract provided that no changes or modifica- wiring in 235 incandescent lights, $587. This tions should be made in the contract, except verdict was properly complained of in the in writing. In order to sustain such subse. assignments of error, was imperfect, not requent agreement, it was alleged that the said sponsive to the charge of the court, and Henshaw was the manager, and had author- should not have been received. If the plant ity to waive said provision in the contract; put in substantially complied with the terms of the contract, appellant was entitled to not provide for any submission of the works pay for it at the contract price. If it was to him. However competent as an expert, lacking in any essential particular, and yet his testimony would be like that of any other was such as reasonably and fairly came witness. within the terms of the contract, as far as 10. The printed catalogue of the rules of completed, then the defendant was entitled the Texas Survey & Rating Bureau were not to recoup in damages the difference between admissible in evidence, and should have been the value of the plant contracted for and the excluded. The contract simply provided for one delivered; but it could not recover such the submission of the works to the electridifference, and in addition thereto recover cian of said bureau, and not to any regulathe value of the items which went to make tions or rules of the bureau itself. up such difference, and then refuse to pay for 11. The court did not err in admitting the the plant.
testimony of the witness S. W. Lovejoy in 6. The eighth assignment, to the effect that regard to the claimed agreement with Henplaintiff was entitled, under the contract, to shaw for running the machinery for a stipu8 per cent. interest on deferred payments, lated time as a test. Whether or not Henand that the court erred in its charge in shaw had authority to make the agreement, restricting its recovery to 6 per cent., is well if any was made, was a question of fact to taken.
be submitted to the jury, under proper in7. The fourteenth assignment is as follows: structions, with the other testimony upon **The court erred in refusing to give in its that point. charge to the jury plaintiff's eighth special 12. The consideration of the numerous bills requested charge, to the effect that by the
of exception, and assignments of error thereterms of the contract the plaintiff would be on, upon the testimony of the witness Henentitled to a lien on the plant, machinery, shaw, is not believed to be necessary, as the etc., furnished, and if the jury found in questions made are mostly elementary. There favor of plaintiff they should also find as to is one question, however, under the twentysuch lien.'” The eighth requested charge sixth assignment, which we will briefly noshould have been given. By the terms of the tice: that is, the exclusion of that portion written contract sued on, the title to the of his testimony in which he sought to show property is reserved in appellant until the that the figures in the original contract, showplant is paid for in cash. Such reservations ing a test of "33 amperes,” to which the of title to secure money are, by the terms of alternator was to be subjected, was made the statute, held to be mortgages. Sayles' when witness was originally negotiating with Civ. St. art. 3190a. The plaintiff below set defendant for furnishing a 500-light dynamo, up the contract as a mortgage, and prayed and that the figures "33 amperes" were infor its foreclosure. In the event of a re- advertently left unchanged when the concovery under the terms of the contract the
tract in controversy was made, and the explaintiff would be entitled to such foreclo
bibit pinned to the contract. This testimony sure.
seeks to change the terms of the contract as 8. Under the seventeenth assignment the written. It could only be done under proper plaintiff below had a right to prove by the pleading setting up some equitable ground witness Henry Garrett that he was the
for changing it. Under either of the three electrician of the Texas Survey & Rating leading heads of equity,-fraud, accident, or Bureau, and that plaintiff applied to him to
mistake, -by proper pleading and proof, such inspect the plant, and that he declined to
change could be made, but not in the manner do so, for, by the written contract, plaintiff attempted by appellant in this case. The had agreed to submit the plant to bis inspec- testimony was properly excluded. tion; but it was not competent to prove by The other errors complained of are such him that any other competent electrician
as will probably not arise on another trial. might inspect the plant, and that such
For the errors above indicated the judgment inspection, when so made, would be sat
is reversed, and the cause remanded for a isfactory to the Texas Survey & Rat
new trial. ing Bureau. The agreement was that the plant might be inspected by the electrician of that bureau, and not by some one else. If the effort was made in good faith,
ALLEN V. WHITAKER. to procure his inspection, and he refused,
(Court of Civil Appeals of Texas.
June 20, this was as far as appellant could reason
1894.) ably be expected to go, unless an agreement could be made to submit the plant to some
HOMESTEAD-ACQUISITION — INTENT TO Occupy
EFFECT. other competent party. In the absence of
Where the owner of an urban homestead such agreement, it could be shown by any
purchases a tract of land half a mile from, and competent evidence what was the quality and not used in connection with, it, he cannot capacity of the machinery and plant.
make the latter his homestead by building a 9. The court did not err in excluding the
house thereon, and forming the intention to
occupy it as a homestead some time in the written report of the electrician, G. H. Gar- future, before actual abandonment of the forrettson. The agreement of the parties did mer homestead by removal therefrom.