Appellees are husband and wife. They were plaintiffs in the District Court, and sue for damages, actual and exemplary, alleging in their petition that appellants, Thomas F. Loftus, Martin H. Loftus, and Mose Whitley, acting in concert, forcibly entered their house in the absence of the husband and against the will of appellees removed therefrom certain household furniture, at the same time assaulting and threatening the said Sallie.
Defendants pleaded not guilty, and that T. F. Loftus, as" a member of the firm of Clark & Loftus, had rented the property removed to Sallie Maxey under a contract in writing, by the terms of which she was to pay a certain sum each week thenceforth for the use thereof, and under 'the further agreement that if she should make default in any payment Clark & Loftus, or either of them, or their agent, would have the right to enter her house and take away such articles without resort to law, and .said Sallie expressly waived all rights of action for trespass on account of ■such entry and taking.
Appellants further alleged that appellees had failed to make the weekly payments and voluntarily gave up the property. Appellees filed .a plea of ñon est factum to the written contract. The jury returned a verdict in favor oi plaintiffs for three hundred and fifty dollars.
The goods without doubt were taken by the defendants, acting in concert, from the plaintiffs’ house. As to whether Sallie Maxey signed the contract understandingly or the defendants removed the goods forcibly and without the consent of Sallie the evidence is too conflicting to be .reconciled.
There is evidence that the husband was not making his home with his *246wife when she obtained the property, and he does not appear to have been present when it was removed. His consent to the removal it seems was-not obtained.
It appears that at a previous term of the court the cause was continued on the application of defendants T. F. and M. H. Loftus, sworn to by them,, the application being based on the absence of certain witnesses therein named, and stating that a subpoena for said witnesses had been placed in the hands of the sheriff of Harris County for service, and that they (affiants) had used due diligence to procure the attendance of said witnesses.
During the trial T. F. Loftus, being on the stand as witness for himself and co-defendants, was asked by plaintiff’s counsel the following-question:
“Did you not at the last term of the court refuse to inform the deputy sheriff who had subpoenas where your witnesses in this cause resided or could be found, notwithstanding the fact that one of the witnesses was-in your store at the time?”
The witness answered “yes,” his objection that the evidence was irrelevant having been overruled.
This ruling of the court and the giving of the following charge are the only errors assigned in accordance with the rules of this court.
The charge objected to reads: “If the proof satisfy you that the defendants, or either of them, or some one acting for them and in their employ and under their command, did take and remove the bed as alleged in the plaintiff’s petition, without the consent of Sallie Maxey, and if the manner of defendants, or either of them, in the taking was by threats,, or in an insolent, overbearing and insulting manner, done in such a way as would naturally outrage the feelings of plaintiffs, then you will find for plaintiffs for such an amount as you may deem proper and adequate;, for if you so find the facts the law allows the jury to affix such an amount-as in the opinion of the jury such wrongful acts call for; such damages-are called vindictive damages or. smart money.”
This charge applied to the facts in this case was we think correct.
The court committed error for which the case must be reversed in not-excluding the evidence of T. F. Loftus when objected to. Without contesting the proposition that his conduct in not aiding the sheriff to serve the process of the court, issued at his own instance and for his own witness, was reprehensible, and that his affidavit for a continuance following that dereliction was criminal, it still does not follow that the evidence was admissible or proper even against himself in this suit.
Without regard to who the parties are or their guilt or innocence in other transactions, all suits must be tried upon evidence pertinent to the issues made by the pleadings.
The evidence being unquestionably irrelevant it still ought not to lead to a reversal of the cause unless it may have influenced the result. This *247party was a material witness in his own behalf—the evidence was directly conflicting. His admission of what he had done was justly calculated to impair confidence in his integrity and truthfulness, and may have had some influence on the verdict, as it doubtless was intended to have by the party offering it.
The evidence bore equally against all three of the defendants while one alone was guilty of the delinquency. The unparticipating defendants unquestionably have the right to complain of its admission, but no greater in the eyes of the law than their codefendant, whose delinquency it was.
We think the charge of the court to the effect that if the instrument alleged to have been executed by Sallie Maxey was genuine, as asserted by defendants, it furnished no justification or defense for the defendants, is correct.
Without such an instrument they had the right to remove the property peaceably and with the consent of the parties having it in lawful possession, while with it they had no right to make such removal forcibly or against the will of plaintiffs.
The judgment is reversed and cause remanded.
Reversed and remanded.
Delivered March 8, 1889.