Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 238
This book is part of the collection entitled: Texas Reports and was provided to The Portal to Texas History by the UNT Libraries.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
238 KAUFMAN & RUNGE V. WICKS. [Tyler Term,
Opinion of the court.
But as heretofore remarked, while malice may be implied from
the want of probable cause, still malice cannot be implied if probable
cause exists. To illustrate the idea, suppose a creditor should
sue out an attachment against his debtor, upon the ground that the
debtor was about to dispose of his property for the purpose of defrauding
his creditors, when in fact there was no probable cause to
induce that belief, if other circumstances did not exist which would
repel the implication, the jury would be authorized in inferring
malice. But on the other hand, if probable cause existed, that is,
if the facts and circumstances were such as to induce a reasonably
cautious person to believe that the debtor was about to so dispose
of his property, malice could not be implied. And even in the absence
of probable cause, the implication of malice might be repelled
by facts and circumstances showing a fair and legitimate purpose of
the creditor in the honest pursuit of what he believed to be a just
claim. Wiley v. Traiwick, 14 Tex., 662.
Probable cause is a mixed question of law and fact, and*should
be submitted to the jury under appropriate instructions.
In this case the only ground appellee relied upon to show that
there was no debt, and hence no probable cause, was that he had
instructed the appellants to sell his cotton, which instructions they
had disregarded, and held his cotton until the market had so declined
that the loss was equal in amount to the claim of appellants
against him. It is conceded that appellee did, on the 8th of January,
1876, instruct them to sell his cotton about the 20th of that
month, but on the 15th of the month he wrote them, as the market
had declined, not to sell, etc. On the 18th of March, 1876, appellants
advised a sale, to which he replied on the 22d of March, indicating
a desire for them not to sell; to which appellants answered,
March 30th, that they would comply with his instructions and hold
the cotton. Appellee, however, claims that about the last of March,
in the town of Rockdale, he told Moeller, an agent of appellants,
that he wanted the cotton sold, but was not certain as to the date.
This date, however, was very clearly and satisfactorily fixed by
Moeller as the 16th day of March, 1876. Appellee claims that he
wrote another letter some time in April, but does not give the contents,
or state that he therein directed them to sell.
There is no controversy but that if appellants held the cotton
under instructions to that effect, the claim sued on in this cause
was a just debt, except for the value of four bales of cotton about
which there is some controversy.
Under the facts and circumstances as disclosed by the record, that
Upcoming Pages
Here’s what’s next.
Search Inside
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/260/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .