M. A. Tynburg & Co. v. Cohen

Citations

• 67 Tex. 220
• 2 S.W. 734
• 1887 Tex. LEXIS 853

Syllabus

<p>1. Practice—Plea in Abatement. —It rests in judicial discretion to permit a plea in abatement which is to be determined after hearing evidence in support thereof, to be tried as a separate issue and before a trial upon the merits.</p> <p>2. Judgment—Partners.—Judgment rendered in a suit brought by the recognized partners in a firm as such, is generally as binding upon a dormant partner as though he had been made a party.</p> <p>3. Actual Damages.—See the opinion for a statement of facts which did not authorize the verdict rendered for actual damages.</p> <p>4. Malice—Charge of Court on Exemplary Damages.—When in an action to recover exemplary damages for wrongfully suing out a writ of attachment it appeared that the affidavit for the writ was made by an agent of a non-resident plaintiff, who was made a party defendant with his principals, it was error to charge the jury that if the defendants or either of them had no probable cause for suing out the writ, and were actuated by malice or evil motive in the issuance and levy of the writ, the plaintiff would be entitled to a verdict against all the defendants for exemplary damages.</p> <p>5. Same.—The error in such a charge is not corrected by charging also that the principals would not be liable for exemplary damages if the agent was influenced by malice and they were not, unless the jury believed that the principal accepted the act of the agent, ratified and approved the same and received the benefit thereof. This was defective in not stating that, to render the principals liable as having ratified the agent’s act, it was necessary that they should have had knowledge of such facts as showed the wrongful conduct of their agent at the time they accepted and approved his act.</p> <p>6. Same—Implied Malice.—The doctrine of implied malice, as applicable to civil suits, is of doubtful utility, and should only be indulged in cases clearly calling for its application.</p>