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: 409

                                
1884.]         JACOBS, BERNHEIM & Co. v. CR. EUM.      4-09
Opinion of the court.
that light. It was not, however, evidence of a conclusive character
which could exclude from consideration other evidence bearing
upon the question of malice, or which was entitled to be treated as
an isolated and decisive fact which determined the issue of malice;
nor to be regarded otherwise, indeed, than as one of the circumstances
in evidence to be viewed and weighed in connection with
and in relation to the whole evidence of the entire transaction.
It would often occur in cases of this character, that the fact that
a party acting under advice of counsel, upon facts fairly stated,
might nevertheless have been guilty, under other facts developed in
the case, of oppression and malice, and therefore his defense against
exemplary damages could not be made available because of the advice
given and followed. There was evidence which tended to show
that Mayer contemplated the proceeding by attachment before he
was advised by counsel to take that course. This advice was given
in the morning of the day of the issuance of the writ; the night
before a witness testified that he, Mayer, said " he wished he had
the sheriff there." Besides this, he wrote on the day of the issuance
of the writ to the plaintiffs, as follows:
" FORT WOIrTI, February 15, 1882.
" Messrs. S. Jacobs, Bernheim d& Co., Galveston, Texas:
" GENTS- I will now give you the particulars concerning I. E.
Crum. After receiving letter and telegram I called upon Templeton
& Carter and consulted with them. We concluded to take one
of their men along with deeds of trust and other papers. We arrived
there last evening, and in asking what he could do for me in
cash as to his letter, he said nothing at present, but would try and
have $300 ready for us March 1st. I then questioned him as to his
cattle, and he replied that he sold them some time ago for $1,400,
with which he paid his creditors, but failed to tell me whom he
paid. I then asked for a deed of trust and other securities, and I
would be willing to extend his time until next crop time. Then he
answered that his land which he now has, amounting to three hundred
and sixty-two acres, was purchased from a party by name of
Hudson, residing in John son county, to whom he gave a vendor's
lien. That settled that; and he claims one acre of land on which
is situated his storehouse, dwelling, barn and other outbuildings.
Finally I made him a proposition that if he would secure my account
by any responsible party, I would be willing to make this
proposition: To take $300 payable on March 1st, and $200 each
month, with ten per cent. interest added. He didn't know if he
could succeed in doing that. I promised to meet him at noon today.
I made this proposition so as to make him believe that I