Bundrem v. Denn

25 Kan. 430 | Kan. | 1881

The opinion of the court was delivered by

HgetON, C. J.:

On the 26th day of March, 1880, the plaintiff in error commenced this action in the district court of Chase county, to recover from the defendant in error the sum of $1,200, the value of goods alleged to have been wrongfully and unlawfully converted to his own use by the defendant, while acting as the agent of the plaintiff. At the same time, plaintiff obtained an attachment against the property of the defendant upon an affidavit alleging two grounds:

1st, That the defendant fraudulently incurred the liability for which the action was about to be brought; and,

2d, That the defendant was about to dispose of his property, with intent to hinder, delay and defraud his creditors.

The defendant filed a motion to discharge the attachment, alleging that the grounds stated in the affidavit are untrue. Upon the hearing of the motion, plaintiff abandoned the charge that defendant was about to dispose of his property, with intent to defraud, etc., and relied then, as he does here, solely upon the first ground to sustain the attachment. The court granted the motion, and plaintiff excepted.

Objection is taken that the disposition of the motion was a determination in a summary and collateral way of the main issue in the cause, and therefore that as the court had no right to inquire into the question whether the plaintiff had a good cause of action or not, it should have refused to sustain the motion, or at least have refused a decision thereon until a jury had passed upon the issues in the case. Neither the affidavit for an attachment nor the order of attachment is ■ any part of the pleadings in the action. The attachment is merely auxiliary to the action to secure a fund to be applied in satisfaction of the claim of the plaintiff, provided he shall be able to substantiate and make good such claim. Before the attachment is issued, the existence .of some one of the statutory grounds therefor must be shown by affidavit. The code specifically provides that the defendant may, before judgment, upon reasonable notice, move to discharge such attachment. Under such a motion, it has always been the practice to contest the existence of any ground for attachment. Such is the law. Whether the charge be non-residence, or that the defendant has fraudulently incurred the liability, it is open to attack, and may be disproved. While the court cannot inquire into the validity or justice of the cause of action, yet it may- inquire into the truthfulness of the grounds of attachment set forth in the affidavit, and if this inquiry incidentally refers to some of the allegations of the petition, this circumstance does not compel the court or judge to refuse consideration of the motion or suspend the decision until the final trial of the cause. A dissolution of the attachment does not defeat the action, and is only the finding or result on a summary hearing upon a special proceeding auxiliary to the action. In this view, the court below had the authority to hear and determine the motion.

The other question in the case is one of fact. All the evidence offered by either party or heard by the court was in writing, in the shape of affidavits, except the depositions of the defendant taken by the plaintiff. The evidence produced by plaintiff covers one hundred and sixty pages of manuscript; that for the defendant, forty pages. We have not space to reproduce the affidavits here, or even abstracts of them. It is sufficient for all purposes to say they disclose that, in December, 1877, the plaintiff and defendant entered into an oral agreement.in substance as follows: The plaintiff was to ship from his store in Emporia to the defendant at Cottonwood Palls, from time to time as-needed, such goods as are usually kept in a retail harness store. The defendant was to receive such goods and sell the same in his own name ■ for the plaintiff at Cottonwood Falls, upon a commission of seven per cent, upon the gross amount of all sales of harness, and ten per cent, upon the gross amount of sales of all other goods. The defendant was, at the end of each month, to render an account of the business and remit the proceeds of all sales. The sales were to be for cash. By subsequent modifications of the agreement by letters written by each party, the defendant was to remit as fast as he should receive from sales a sufficient amount of money to pay for remitting the same; and he was allowed to sell upon short time to parties who were responsible and whose accounts he would guarantee; and he was also permitted, when necessary to make a sale, to cut the prices a little at which the goods were billed by plaintiff' to him. Otherwise, he was to sell the goods for the prices at which they were billed to him. Under this agreement, from December 12, 1877, to November 6, 1879, the plaintiff delivered to the defendant goods which at the billed prices amounted in value to the sum of $3,931.05. On March 17,1880, the account of the plaintiff with defendant showed goods charged to him to the amount of $3,931.05, with credits by remittances and goods returned of $1,600, leaving a balance of $2,331.05. On March 17, 1880, plaintiff and defendant had a partial settlement, and plaintiff took back goods on hand $274.63; credited defendant for freight, expressage and cost of remitting money, $40, with $16.75 for taxes, and $393.10 for discounts, and also $117.58 for balance of commissions. Defendant, among other things, turned over to plaintiff a horse at the agreed price of $90, and $48.35 of groceries, making total credits given to defendant of $2,772.58, still leaving a balance of $1,158.47. The defendant carried on a small grocery business in connection with his sale of harness, etc. The average amount of the stock in the grocery was from $400 to $500. As to the amount of goods which had been sold on credit but not collected, defendant produced for the examination of the plaintiff and one Thomas G. Stack, who was acting in the settlement with defendant, a ledger in which were the outstanding accounts due from various persons for the goods of plaintiff, and also for the groceries sold on credit. According to the evidence of Stack, these accounts were against eighty-thrée persons, and aggregated the total sum of $1,278.81. This witness estimated, from the statements of defendant and from matters in the ledger, that not to exceed twenty-five per cent, of the accounts were due for goods of plaintiff. Under this estimate, about $1,000 of goods would be unaccounted for. This particular evidence of Stack is overturned by the testimony of Lester Cochran, S. D. Breese and W. P. Smith, that Stack omitted from the list of names on the ledger eighty-three other names shown by the ledger as debtors. Counsel of plaintiff suggest that the persons whose names were omitted had no accounts on the books for goods of plaintiff. The witness Stack intended by his testimony to convey the inference that the names of the persons he gave were all the parties the defendant had charges against, either for harness or for groceries. Suppressio veri is as bad as suggestio falsi.

From these and other facts in the case, it is apparent to our minds that the goods not otherwise accounted for had been sold on credit and the accounts therefor had not been collected; that as defendant was authorized to sell to such persons as in his judgment were good, and nothing having been proved that he did not exercise his best judgment, such sales were fully within the scope of his authority. At least, the sales were not fraudulent or unlawful. As such defendant became possessed of the goods and . merchandise without any deception, trick, or other unfair means, and as we are not satisfied from the record that he converted to his own use any of the property with which he was intrusted, or any of the proceeds thereof, we are not willing to say that the defendant “fraudulently incurred the liability for which the suit was brought.” ' We- do not think the testimony supports such a conclusion.

There are many explanatory and qualifying circumstances connected with the conduct of defendant. It is true that after December, 1877, he failed to render any account, although continually requested so to do, and often promising that he would. It is also true that the excuse for his neglect to obtain one of his account books which was missing, but supposed to have been in the possession of his deceased wife’s parents, as also his statements of his accounts, are not wholly satisfactory. Yet it seems to us all the trouble in his affairs grew out of his incompetence and unfitness for the business in which he was engaged, and his unwillingness or hesitancy • to confess his incapacity. The long list of credits tends to prove his incapacity, but not dishonesty. Prior to his undertaking to sell goods for plaintiff he had been a farmer all his life, and knew nothing about the principles of book-keeping or the selling of goods. He seems to have kept his books to 'the best of his knowledge, but not according to any known system of book-keeping. The business of his harness and grocery stores has become confused in his accounts, not, we think, fraudulently, but from his want of knowledge of such matters and his awkward system of accounts. We think it impossible to say that only twenty-five per cent, of the uncollected accounts was for the goods of plaintiff. It is more reasonable to believe that in view of the small stock of groceries he usually kept on hand, and the stock he had on March 17, 1880, that the sales on credit were mainly of the goods of plaintiff. As to the alleged refusal of defendant to surrender up the accounts, the evidence of William Craft makes a complete answer. He testified that after the attempted settlement in March, 1880, between the parties, he saw them part. Defendant then said to plaintiff: “I will collect that money and send it to you just as fast as I can;” and plaintiff in reply said, “ That will be all right.”

While the conclusion we have reached overthrows the attachment, it does not follow by any means that plaintiff has not a good cause of action against defendant. We simply decide that it does riot sufficiently appear from the testimony that he fraudulently incurred the liability existing against him. This, and nothing more.

The order and judgment of the court dissolving and setting aside the attachment will be affirmed.

All the Justices concurring.