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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.

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

MOREAU v. DU BELLET. (Court of Civil Appeals of Texas. May 30, 1894.)

RECEIVER APPOINTED BY FOREIGN COUNTRYRIGHT 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.

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. Appellant 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 property claimed by plaintiff, and whose authority is not recognized by the laws which govern this court." Defendant further pleaded that said appellant was appointed as such liquidator of said Société, etc., by an order of 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 court, appellant had no standing in the courts of the United States or of the state of Texas; that said power did not empower plaintiff to sue either in France or elsewhere,-which said plea was sworn to by defendant. On hearing the court sustained said plea in abatement, and, appellant declining to amend, said cause was dismissed at his cost, to which he excepted, and brings the cause here by appeal.

If appellant, as liquidator, had no standing in court, the action of the court below was proper, and it is unnecessary to consider any other question. We take it that the office of liquidator, as alleged in the petition, performs the same functions as does the office of receiver, under our law. If so, under the authority of Moseby v. Burrow, 52 Tex. 402, he has no right to act in his official capacity outside the jurisdiction of the tribunal that appointed him. Bonner, J., delivering the opinion of the court in that case, said: “A receiver is but an officer of the court which appoints him, and it would follow, upon principle, and which is abundantly sustained by authority, that he cannot act in his official capacity outside the jurisdiction of the court by which he was appointed;" citing Booth v. Clark, 17 How. 322, which clearly lays down the same doctrine. In High, Rec. § 239, the following is enunciated as the true rule: “Upon the question of the territorial extent of a receiver's jurisdiction and powers, for the purpose of instituting actions connected with his receivership, the prevailing doctrine established by the supreme court of the United States, and sustained by the weight of authority in various states, is that the receiver has no extraterritorial jurisdiction or power of official action, and cannot go into a foreign state or jurisdiction, and there institute a suit for the recovery of demands due the person or estate subject to his receivership. His functions and powers, for the purpose of litigation, are held to be limited to the court of the state within which he was appointed, and the principles of comity between nations and states, which recognize the judicial decisions of one tribunal as conclusive in another, do not apply to such a case, and will not warrant a receiver in bringing an action in a foreign court or jurisdiction." This rule applies in this state to foreign administrators and executors, when attempting to act in their official capacity; and we see no good reason why the receiver of a defunct corporation, appointed by a court of a foreign nation, should occupy a more favorable atti

tude before the courts of this state than they. We are of opinion that appellant was not entitled to recover, in the capacity in which he sued, and that the action of the district court, in so holding, was correct. The judgment is affirmed.

A. J. ANDERSON ELECTRIC CO. v. CLEBURNE WATER, ICE & LIGHTING CO.

(Court of Civil Appeals of Texas. June 27, 1894.)

ELECTRIC PLANT-ACTION FOR PRICE-DEFENSESDEFECTS IN CONSTRUCTION-SET-OFF-DAMAGES.

1. In an action to recover the price of an electric plant, an answer alleging that the plant was "defective as to material, inferior as to workmanship, poorly constructed, and not such as was contracted for," and containing specific allegations which show in what particulars the plant is claimed to be defective, is not too vague and indefinite.

2. An allegation in the answer that "the switch board furnished was unsafe and dangerous," and such as the person to whose inspection it was agreed the plant should be submitted "would not approve," is too vague, and an exception thereto should be sustained.

3. Where a contract for the purchase of machinery is made directly with reference to a certain use to be made of the machinery, and with reference to contracts already made by the buyer, whereby he would receive a fixed profit, which is known to the seller, such profits may be off set in an action for the price, where the seller wrongfully fails to comply with the contract without fault on the part of the buyer.

4. A written contract may be modified by a verbal agreement, though the contract recites that no modifications shall be made, except in writing.

5. When, in an action to recover the contract price for the erection of an electric plant, defendant claims that the contract was not executed according to the specifications, in that certain wiring was not done, and the court charges that defendant can recover the cost of completing the wiring, it is error to refuse an instruction that the jury should deduct from such sum any damages arising from the refusal of defendant to point out to plaintiff the points for putting up the wiring.

6. In such an action, defendant cannot recover the difference in value between the plant furnished and that contracted for, and at the same time rescind the contract.

7. Where the statute provides that contracts of sale which stipulate that the title to the property shall not pass until the price is paid shall be considered mortgages (Sayles' Civ. St. art. 3190a), and the vendor brings an action on such a contract for the price, and to foreclose the mortgage, the jury should be instructed that, in case they find for plaintiff, they should also find for him as to the lien.

8. Where a contract for the building of an electric plant provides that on its completion it shall be inspected and passed upon by a certain person, and such person declines to act, the builder may show that the quality of the work is according to the specifications.

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11. Evidence varying a written contract is not admissible unless the equitable grounds for changing the same are pleaded.

Appeal from district court, Johnson county; J. M. Hall, Judge,

Action by A. J. Anderson Electric Company against the Cleburne Water, Ice & Lighting Company. There was a judgment for de fendant, and plaintiff appeals. Reversed.

There is no brief or other appearance by appellee. The following statement of the issues by appellant is adopted: This suit was brought in the district court of Johnson county on November 9, 1893, by appellant, A. J. Anderson Electric Company, to recover of the appellee, Cleburne Water, Ice & Lighting Company, the sum of $8,000,-the purchase price of an electric light plant alleged to have been furnished, sold, and delivered by appellant to appellee under a contract therefor entered into between the parties on or about May 17, 1893,-and also asking the foreclosure of a vendor's lien on the plant to secure the payment of the purchase price. The defendant answered, setting up, among other things, failure in the plant furnished to comply with that contracted for, and also pleading damages, in various sums, for such alleged failure of compliance. The jury returned a verdict "for the defendant, and assessing its damages at $1,460, viz. difference in the plant built and the one to be built, $873; on wiring in 235 incandescent lights, $587;" and the court rendered judgment accordingly, that plaintiff take nothing, and the defendant recover its damages aforesaid, and costs of suit, and decreeing that plaintiff recover of defendant the possession of the property under certain conditions. From this judgment the plaintiff appealed.

The following is a copy of the offer in writing by appellant, and the acceptance by appellee, which constituted the contract between them: "Gentlemen: The A. J. Anderson Electric Co., of Ft. Worth, Texas, propose to furnish, put up complete, in satisfactory running order, the following electric light plant, to wit [here follows a description of the machinery],

* * for the sum and price of ($15,500.00) fifteen thousand five hundred dollars, payable as follows: [Here follows a statement of the payments.] *** All deferred payments to bear interest from date at the rate of 8% per annum until paid. We agree to furnish you with duplicates of the guaranties hereto attached, properly signed by the manufacturers of the apparatus, viz. the National Electric Mfg. Co., of Eau Claire, Wis., and the J. H. McEwen Mfg. Co., of Ridgeway, Pa. We further agree to subject the plant to the inspection and approval of the electrician of the Texas Survey and Rating Bureau, same to be paid for by us. We further agree to have the plant in operation within thirty days from the date of the arrival of the boilers, engine, and electrical machinery; said machinery to be in Cleburne,

Texas, not later than 90 days from the date of this contract. The acceptance by you of this proposal within five days from this date, and the approval of the same by the manager of this company, shall constitute a contract between yourselves and this company. It is expressly understood and agreed that the title and right of possession of, in, and to all of the machinery, apparatus, supplies, and property furnished under this proposal, or as additional thereto, shall be and remain in the A. J. Anderson Electric Co., of Ft Worth, Texas, until fully paid for in cash. This instrument contains the whole proposal of this company, as finally fixed, and all other statements and representations, if any, made; and no changes or modifications of this agreement, after its acceptance and approval, can be made, except by the manager of this company, in writing. Respectfully, A. J. Anderson Electric Co., by F. M. Henshaw, Mg'r.

"Accepted, May 17, 1893. Cleburne Water, Ice and Lighting Co. S. W. Lovelady, Pres. "Witness: L. W. Chase, V. Gray. "Approval: F. M. Henshaw, Mg'r."

F. M. Brantly and Davis & McKoy, for appellant.

LIGHTFOOT, C. J. (after stating the facts). The first assignment of error is as follows: "The court erred in overruling plaintiff's first exception to that portion of defendant's answer averring that the plant furnished 'was defective as to material, inferior as to workmanship, poorly constructed, and not such as was contracted to be furnished,' because the allegation was vague and indefinite." This assignment is not well taken. The allegations objected to, if standing alone. might be objectionable; but the pleader follows it up with definite and specific statements, in which it is shown in what particulars the plant is claimed to be defective, inferior, etc.

2. The second assignment of error is that "the court erred in overruling plaintiff's special exceptions to so much of said answer as set up that 'the switch board furnished was unsafe and dangerous, and such as the electrician of the Texas Survey & Rating Bureau would not approve,' because vague, indefinite, and failing to show wherein the same was unsafe or dangerous, or why such electrician would not approve the same." The pleading of such claimed defect is too indefinite, and the exception should have been sustained. Hendrix v. Nunn, 46 Tex. 149; Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606. 3. The third and fourth assignments object to the measure of damages set up in the answer, by reason of the failure to furnish the number of electric lights called for in the contract, especially the allegation that the defendant was to receive $2.50 per light for them, and setting out the profits which defendant could have made upon such plant if the same had been provided according to

contract. In the case of Stark v. Alford, 49 Tex. 275, there was a suit involving damages for the failure of certain mill machinery to meet the requirements of the contract. The court, in passing upon the measure of damages, says: "The first and leading question to be decided is whether the machinery delivered by the Washington Iron Works to appellant was, in quantity, capacity, and quality, such as stipulated in the contract. If not, appellant is entitled to a judgment against said corporation, if it has been properly brought into court, for the difference of the value of the machinery actually delivered and that contracted for. Wright v. Davenport, 44 Tex. 164. This difference may be shown by witnesses who are able to state the difference, taking the contract price and the expense of delivery as the basis for estimating the difference in value between the machinery actually delivered and that contracted for; or the difference may also be shown by satisfactory proof of the reasonable cost of supplying the deficiencies or removing the defects of the machinery de livered, if this has or could be done. If there was fraud, or an express warranty, the measure of damages would of course be different. But we see nothing in the record requiring a discussion of the rule applicable to such cases, and certainly we are at a loss to conceive upon what ground the court held that appellant was entitled to the contingent and speculative damages which the jury were authorized to find." We think the rule there laid down is applicable, as a general rule, to cases of this character. But it must be conceded that in some cases it has been held that where a contract is made directly with reference to a certain use to be made of the machinery, and with contracts already made by the buyer, whereby he would receive a certain fixed and definite profit, which is known to the seller, then and in such a case the court would be authorized to consider such profits, in measuring the damages, if the seller wrongfully, and without fault on the part of the buyer, failed to comply with the contract. Porter v. Burkett, 65 Tex. 386; Railway Co. v. Hill, 70 Tex. 51, 7 S. W. 659; Id., 63 Tex. 381; Express Co. v. Darnell, 62 Tex. 639; Jones v. George, 61 Tex. 349; Hadley v. Baxendale, 9 Exch. 353. The allegations of the petition are full, and it is evidently drawn in the light of the authorities. The exceptions were not well taken.

4. The appellant excepted to so much of appellee's pleading as set up a subsequent verbal agreement between defendant and F. M. Henshaw as to testing the machinery for a certain length of time. The written contract provided that no changes or modifications should be made in the contract, except in writing. In order to sustain such subse quent agreement, it was alleged that the said Henshaw was the manager, and had authority to waive said provision in the contract;

that he did waive it; and that the agreement was based on a valid consideration. The assignment is not well taken.

5. The fifth assignment is as follows: "The court erred in charging the jury the defendant might recover damages for the cost of putting up and wiring in the remaining are and incandescent lights,' and at the same time refusing to limit such recovery by refusing to give plaintiff's fifth and seventh requested charges, to the effect that the jury should deduct from such allowance or damage any cost or expense suffered by plaintiff from the neglect or default of defendant to point out or designate the places for the putting up or wiring in such lights." The charge of the court upon this point was as follows: "If you believe from the evidence that the plaintiff furnished and completed the electric plant as contracted for, as per the terms of said written contract, and any change of said contract, if any such change there were, save and except putting up and wiring in a portion of the arc and incandescent lights, and that the machinery, material, and workmanship of that portion that was so completed was reasonably of the character and kind contracted for, and if the plaintiff then offered to, or was ready and willing to, put up and wire in the remainder of said are and incandescent lights, and that the defendant declined or failed to designate or point out the places in which to put up or wire in said remaining lights, and that the defendant then, on being requested by plaintiff to pay such cash payment, and to execute and deliver said purchase-money notes, failed or refused to do so, then you will find for the plaintiff the whole of the price actually agreed upon between the parties as the price of said plant, less any damages you may believe the defendant is entitled to recover, if anything, for the reasonable cost of putting up and wiring in said remaining arc and incandescent lights, and less any reduction you may find the defendant entitled to by reason of delay in the completion of said plant." This charge was clear, and easily understood, and set out the law applicable to the case, as far as it went; but at the request of appellant's counsel the court should have gone further, and charged the jury properly upon the points requested by appellant. This charge of the court was evidently based upon the theory of the plant being received by the appellee, and upon this theory the measure of damages given in the charge was correct. But under it the jury found nothing for the plaintiff, but found for the defendant $1,460 damages, as follows: Difference between the plant built and the one contracted for, $873; and for wiring in 235 incandescent lights, $587. This verdict was properly complained of in the assignments of error, was imperfect, not responsive to the charge of the court, and should not have been received. If the plant put in substantially complied with the terms

of the contract, appellant was entitled to pay for it at the contract price. If it was lacking in any essential particular, and yet was such as reasonably and fairly came within the terms of the contract, as far as completed, then the defendant was entitled to recoup in damages the difference between the value of the plant contracted for and the one delivered; but it could not recover such difference, and in addition thereto recover the value of the items which went to make up such difference, and then refuse to pay for the plant.

6. The eighth assignment, to the effect that plaintiff was entitled, under the contract, to 8 per cent. interest on deferred payments, and that the court erred in its charge in restricting its recovery to 6 per cent., is well taken.

7. The fourteenth assignment is as follows: "The court erred in refusing to give in its charge to the jury plaintiff's eighth special requested charge, to the effect that by the terms of the contract the plaintiff would be entitled to a lien on the plant, machinery, etc., furnished, and if the jury found in favor of plaintiff they should also find as to such lien.'" The eighth requested charge should have been given. By the terms of the written contract sued on, the title to the property is reserved in appellant until the plant is paid for in cash. Such reservations of title to secure money are, by the terms of the statute, held to be mortgages. Sayles' Civ. St. art. 3190a. The plaintiff below set up the contract as a mortgage, and prayed for its foreclosure. In the event of a recovery under the terms of the contract the plaintiff would be entitled to such foreclo

sure.

8. Under the seventeenth assignment the plaintiff below had a right to prove by the witness Henry Garrett that he was the electrician of the Texas Survey & Rating Bureau, and that plaintiff applied to him to inspect the plant, and that he declined to do so, for, by the written contract, plaintiff had agreed to submit the plant to his inspection; but it was not competent to prove by him that any other competent electrician might inspect the plant, and that such inspection, when so made, would be satisfactory to the Texas Survey & Rating 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, to procure his inspection, and he refused, this was as far as appellant could reasonably be expected to go, unless an agreement could be made to submit the plant to some other competent party. In the absence of such agreement, it could be shown by any competent evidence what was the quality and capacity of the machinery and plant.

9. The court did not err in excluding the written report of the electrician, G. H. Garrettson. The agreement of the parties did

not provide for any submission of the works to him. However competent as an expert, his testimony would be like that of any other witness.

10. The printed catalogue of the rules of the Texas Survey & Rating Bureau were not admissible in evidence, and should have been excluded. The contract simply provided for the submission of the works to the electrician of said bureau, and not to any regulations or rules of the bureau itself.

11. The court did not err in admitting the testimony of the witness S. W. Lovejoy in regard to the claimed agreement with Henshaw for running the machinery for a stipulated time as a test. Whether or not Henshaw had authority to make the agreement, if any was made, was a question of fact to be submitted to the jury, under proper instructions, with the other testimony upon that point.

12. The consideration of the numerous bills of exception, and assignments of error thereon, upon the testimony of the witness Henshaw, is not believed to be necessary, as the questions made are mostly elementary. There is one question, however, under the twentysixth assignment, which we will briefly no tice: that is, the exclusion of that portion of his testimony in which he sought to show that the figures in the original contract, showing a test of "33 amperes," to which the alternator was to be subjected, was made when witness was originally negotiating with defendant for furnishing a 500-light dynamo, and that the figures "33 amperes" were inadvertently left unchanged when the contract in controversy was made, and the exhibit pinned to the contract. This testimony seeks to change the terms of the contract as written. It could only be done under proper pleading setting up some equitable ground for changing it. Under either of the three leading heads of equity,-fraud, accident, or mistake,-by proper pleading and proof, such change could be made, but not in the manner attempted by appellant in this case. The testimony was properly excluded.

The other errors complained of are such as will probably not arise on another trial. For the errors above indicated the judgment is reversed, and the cause remanded for a new trial.

ALLEN v. WHITAKER. (Court of Civil Appeals of Texas. June 20, 1894.) HOMESTEAD-ACQUISITION — INTENT TO OCCUPY EFFECT.

Where the owner of an urban homestead purchases a tract of land half a mile from, and not used in connection with, it, he cannot make the latter his homestead by building a house thereon, and forming the intention to occupy it as a homestead some time in the future, before actual abandonment of the former homestead by removal therefrom.

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