50 Mo. App. 280 | Mo. Ct. App. | 1892
— This is a suit by attachment. It was instituted in the circuit court of Scotland county, and was transferred by change of venue to the circuit court of Marion county, where it was finally determined in favor of the defendants. As there is some .controversy as to the nature of the action, it will he necessary to set out the petition, the affidavit for the attachment and the written contract, which is made the foundation of the action. Omitting the caption the petition reads: “ That, on the tenth day of November, 1888, plaintiff contracted and sold to the defendants on their special instance and request, and defendants contracted for and purchased of it, one number 12 Phœnix engine on trucks, twelve-horse-power, with self-guide traction attachment; also one single E sawmill and fixtures and extras usually furnished with said engine by it, with fifty-two-inch saw complete, at the agreed price and sum of $1,850, to be paid for on delivery, by defendants executing to it their three promissory notes, bearing
“Plaintiff further states that, on the -day of -, defendants took and obtained possession of said aforesaid engine and sawmill and fixtures, and yet hold and enjoy possession thereof, and though so having, holding and enjoying-such possession and. property, and though by plaintiff requested so to do, have wholly failed and refused to execute the aforesaid notes and mortgage, as by their contract they agreed to do, on which account they are indebted to plaintiff in the sum of $1,850, with interest, for which it prays-judgment.”
To this petition was attached the following affidavit by one of the plaintiff’s agents: “Affiant states that the plaintiff in the above-entitled cause has a just-demand against the defendants therein, which will be due as follows: $650, due January 1, 1890; $650, due-January 1, 1891, and $550, due January 1, 1892; and that the amount, which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, is $1,850; and ' N
“First. That this affiant has good reason to' believe and does believe that the defendants have fraudulently concealed, removed or .disposed of their property or effects, so as to hinder or delay their creditors.
“Second. That the debt sued for was fraudulently contracted on the part of the debtors.
“Fourth. That the defendants have fraudulently conveyed or assigned their property or effects, so as to hinder or delay their creditors.”
The contract referred to in the petition is as follows:
“Memphis, Mo., 11-16-1888.
“C. Aultman & Co., Canton, Ohio.
“You will please ship for the undersigned, in care of J. S. Collins, agent at Memphis, Missouri, by the route you think 'best and cheapest, if possible, on or before, as soon as possible, one number 12 Phœnix engine on trucks, twelve-horse-power, with self-guide traction att., also one single E sawmill and the fixtures and extras usually furnished with said engines by you, with fifty-two-inch saw complete.
“In consideration whereof, the undersigned agrees to receive same on its arrival, subject to all the conditions of the warranty printed below, pay freight and charges thereon from the factory, and also agrees to pay to your order, at the time and place of delivery, the sum of $1,850.
“Payable as follows, to-wit: Cash, $-, and execute notes with approved security, as below, having upon the back of each the property statements as shown on this order. Said notes to draw interest at eight per cent, per annum. Note for $650, due January 1, 1890; note for $650, due January 1, 1891; note for $550, due January 1, 1892. And further agrees to give in security of the foregoing notes a first mortgage on the above-named machinery, and on the following other property viz.:
*284 “warranty.
‘‘The above machinery is warranted to be made of good materials, and, with proper use and management, to do as good work as any other of its size, made for the same purpose in the United States. If, inside of five days from the day of its first use, the said machine shall fail to fill said warranty, written notice shall be given to 0. Aultman & Co., and also to the local agent from whom the same was purchased, stating wherein it fails, to fill the warranty, and a reasonable time allowed them to get to the machine and’ remedy the defect, if any there be (if it be of such a nature that a remedy cannot be suggested by letter), the undersigned rendering necessary and friendly assistance. If the machinery cannot be made to fill the warranty, that part which fails shall be returned by the -undersigned to the place where received, and another furnished which shall perform the work, or the money and notes which shall have been given for the same to be returned, and no further claims to be made on C. Aultman & Co.
“It is further mutually understood and.agreed that use of said machinery, after the expiration of the time named in the above warranty, shall be evidence of the fulfillment of the warranty, and full satisfaction to the undersigned, who agrees thereafter to make no other claim on C. Aultman & Co; and, further, that if the above machinery, or any part thereof, is delivered to the undersigned before settlement is made for the same, as herein agreed, or any alterations or erasures are made in the above warranty ox in this special understanding and agreement, the undersigned waives all claims under warranty.
“(X) It is expressly understood that all agreements appertaining to this order are included in the above. A. J. Daggs,
“R. E. Daggs.
*285 “Post Office, Memphis,
“County, Scotland,
“State, Missouri.
“(X) This order taken and recommended for acceptance by-:— Agent. No verbal agreements of any kind appertaining to this order mil be recognized. All agreements must be in writing.”
The defendants filed a plea in abatement, which on a trial at the June term, 1891, of the Marion circuit court, was decided in favor of the defendants. The ' verdict was returned on the nineteenth day of June, which was Friday. On the twenty-third pf the same month and during the continuation of the term, the plaintiff filed motions for new trial and in "arrest of judgment. On the day following both motions were overruled, and leave given to plaintiff to file bill of exceptions by November 14. On the "same day the court, by its order, required the defendants to answer to the merits on or before September 20, and the plaintiff was required to reply on or before October 20. On the eighteenth of September the defendants complied with this rule. Among other matters set forth in their answer, a clause in the nature of a plea in abatement of the suit was interposed, which was to the effect that, the judgment dissolving the attachment having been unappealed from, and the action being based on an unmatured demand, the court was without jurisdiction to proceed‘further in the case. On the twenty-eighth of September the plaintiff filed its bill of exceptions. On November 9, it being the second day of the November term of court, the plaintiff presented an application for a change of venue from the circuit, on the ground of prejudice, both on the part of the presiding judge and the inhabitants, the consideration of which was passed to some future day. On November 10, and during the same term,
Some further reference may be made here to the record before us, as the matters are directly involved in the questions presented for our determination. Under section 562, Revised Statutes, 1889, it was the duty of the plaintiff to appeal directly from the judgment on the plea in abatement, and such appeal would have operated as a supersedeas of the judgment dissolving the attachment, and also have had the effect to stay all further proceedings until the final determination of the appeal. But the legislature, at the session in 1891 (Laws, 1891, p. 45), repealed section 562, and in its stead enacted a new section, in which the law was so changed as to prohibit a plaintiff under such circumstances from appealing directly from a judgment dissolving the attachment, and to permit him to do so only after the final determination of the merits. The new section went into effect on June 22. In the present case, the verdict on the trial of the plea in abatement was returned on June 19, while the old law was in force. Touching the plaintiff’s right of appeal
It is insisted by defendants’ counsel that the right of this court to grant an appeal under section 2250, Revised Statutes, 1889, is limited to an appeal from final judgment only, and that, as a judgment dissolving an attachment is not a final judgment, our jurisdiction was erroneously exercised. We will discuss this question after we have disposed of the assignments of error, which are based on the court’s action in making a final disposition of the cause.
In support of the motion to dismiss the defendants read the petition and affidavit and the judgment of the court dissolving the attachment. The only ground upon which it is possible to rest the judgment of the court is that, at the time the suit was instituted, the demand upon which it is based was not due; that the attachment, which alone conferred jurisdiction, had been dissolved at the June term of the court, and the judgment therein unappealed from, and that by reason thereof the court'was without further jurisdiction in the case and could only dismiss it.
It is undoubtedly the law that a suit by attachment, which is based on a claim not due, must be dismissed when the issue on the plea in abatement is found for the defendant. No authorities need be cited in support of this proposition The right to institute such a suit depends solely on the right to attach, and, when the right to attach is finally decided not to exist, the juris
We are of the opinion that the averments in the petition make out a case for damages for a violation of the contract by the defendants, in that they failed and refused to give their notes and chattel mortgage for the property sold, and that the action is not for the recovery of the price of the goods. The' law is well settled in the books that, where there has been a sale of goods to be paid for by a note or bill, payable at a future day, if the goods are delivered and the vendee refuses or fails to comply with his part of the contract by giving his note, the vendor can immediately sue as for a breach of the contract, and the measure of his damage is prima facie the amount of the note. This right of action is authorized not only upon the idea of a special promise to give the note, which has been violated, but, as Mr. Parsons in his work on contracts says, “ because, by the practice of merchants, this noto or bill might be made, by the vendor getting it discounted, the means of present payment.” 3 Parsons on Contracts [5 Ed.] p. 210. The rule as above stated is supported by a long list of authorities. Hayes v. Weatherman, 14 Ind. 341; Hanna v. Mills, 21 Wend.
If we rightly understand the defendant’s counsel, they do not question the law of the foregoing cases; but their contention is that the plaintiff’s petition must be treated as stating an action for the price of the goods. The main stress of the argument in support of this is that the plaintiff’s agent stated in the affidavit for the attachment that the debt was not due. Therefore, it is argued, that, unless the action is treated as for the price of the goods, the petition and affidavit are inconsistent. The case of Deering v. Collins, 38 Mo. App. 80, is cited in support of this. The decision in that case is in no way applicable. There the suit was based on an alleged promise by the defendant to pay to the plaintiff the balance found due him on a settlement. One of the grounds of attachment was that the damages sued for grew out of the. commission of a felony or misdemeanor. The court refused to allow the plaintiff to introduce any evidence in support of this ground. The Kansas City Court of Appeals sustained this action, and we think properly so, for the reason that the alleged ground of attachment was-inconsistent with the cause of action stated in the petition; that, if the petition was true, the ground for attachment could not possibly be true. But the law of that case in no way helps out the defendants’ contention. The nature of the plaintiff’s cause of action must be ascertained from the averments in the petition and not 'from the statements made in the affidavit for the attachment. The petition sets out the contract specially, and states its conditions, that is, that the
We, therefore, conclude' that the court committed error in dismissing the case. The plaintiff was entitled to a trial on the merits.
We now come to the attachment branch of the case. The defendants challenge the right of special .appeal from the judgment in their favor on the plea in abatement. If they are right, then we 'are without jurisdiction in the premises, and the appeal granted by us must be dismissed. The question is a new one, and its solution is by no means free of difficulty.
Section 2250, Revised Statutes of 1889, under which the special appeal was granted, reads: “Any judge of the supreme court or either of the courts of appeals, respectively, in cases appealable to said courts upon inspection of a copy of the record, may grant an appeal by special order for that purpose at any time within one year next after the rendition of the final judgment or decision of the cause. But no such order shall be granted by such court or judge, unless it appear from an inspection of a copy of the record that error was committed by the trial court against the party applying for the order, and materially affecting the merits of the action.”
This court in the case of Duncan v. Forgey, 25 Mo. App. 310, decided that exceptions taken on the trial of a plea in abatement could be reviewed on appeal only, and
The strongest argument against the right of appeal under section 2250 is that it would have the effect, where the plea in abatement was found for the defendant, to stop further proceedings in the case for a year, unless the plaintiff should elect to proceed. This would necessarily be the result, but with this we have nothing to do. It is our simple duty to interpret the statute as written, having reference to other statutes of like character, and then to enforce it. The last clause of section 562 reads: “ And, if the party against whom judgment shall be rendered fails to appeal during the time fixed by law for appeals in other cases, he shall be deemed to have waived all right to have such judgment reviewed.” Appeals in other cases may be granted under section 2250 within a year after the rendition of the judgment. ‘Why may not such an appeal be granted from a judgment dissolving an attachment? This conclusion seems to be unavoidable when the two sections are read together. The reason suggested in opposition merely addresses itself to the wisdom of the law. The supreme court, in Young v. Hudson, supra, in discussing section 562 said: “It has further enacted that the proceedings upon that plea shall be reviewable by appeal. The effect of this is to limit the time within
The grounds of attachment set forth in the affidavit were: First. A fraudulent concealment and removal of property. Second. That the debt was-fraudulently contracted. Third. That the defendants-had failed to pay the price or value of the property delivered, which by contract they were bound to pay upon delivery. Fourth. A fraudulent conveyance or assignment of property, etc. At the close of the evidence the court instructed the jury that there was no evidence to support either the first or third ground of attachment. The plaintiff assigns for error the ruling of the court as to the third ground. We will dispose of this assignment first, as it presents the material question.
It will be noted that the contract between the parties clearly stipulated that the notes should be executed and delivered and a first mortgage given on the property sold at the time of its delivery, making the several acts contemporaneous. It was conceded on the trial that the defendants had obtained possession of the property without giving the notes and mortgage, and that they afterwards retained the property, but refused to comply with the contract and failed to satisfy the claim in any manner. The property was shipped to the defendants in care of the plaintiff’s local agent at Memphis, and it arrived at its destination in the latter part of December, 1888. Without undertaking to go into details, it is sufficient to state that the evidence tended strongly to prove that the defendant Azro was permitted to take possession of
In striking down the third ground of attachment, the court evidently proceeded upon the theory, that the agreement to give the notes and mortgage did not amount to an, undertaking to pay on delivery within the meaning of the attachment law; that is, that the contract necessarily implied credit. Very many authorities are cited in support of this ruling of the court, but
We assume that the vendor and vendee may stipulate that payment of the price or value of the article sold may be made in something else besides money. To hold otherwise would be to curtail the right of contract. But whatever may be the contract, the price — whether it be money, a note or check — must by the terms of the contract be payable on delivery of the property sold, else attachment will not lie. In our opinion the case we have here must be worked out on this line of thought. The questions then are, did the parties intend that the property sold should be paid for by notes and a first mortgage, and, if so, was it the contract that the notes and mortgage should be given at the time of the delivery of the property sold. We think that both questions must be answered in the affirmative. The defendants in the contract, expressly stipulated that in consideration of the shipment of the property sold to them (in care of the plaintiff’s agent), they would receive the property, pay freight charges thereon, and also pay to plaintiff’s order the sum of $1,850 by giving their notes in the manner specified, and secure same by first mortgage on the property sold. That it was intended that the notes and mortgage should be given at the time of delivery, is put beyond all dispute by this clause in the contract: “If the machinery cannot be made to fill the warranty, that part which fails shall be returned by the undersigned to the place where received, and another furnished which shall perform the work, or the money and notes
The case of Harlow v. Sass, 38 Mo. 34, is authority for our conclusions. That was an attachment suit wherein the ground of attachment was a failure or refusal to pay a balance due on a piano which, it was alleged, was agreed to be paid on delivery of the piano. The clause in the contract in reference to this balance reads: “For the balance I am to receive note of Mrs. Hamilton, indorsed by Mr. Sass to be due April 1, 1862, for $200 (dated), January 12, 1862.” The court in the course of its opinion said: “It must be stipulated by the contract that the price or value of the article or things sold was to be paid for on delivery, else attachment will not lie. If credit is given or intended, the creditor must pursue his remedy by an ordinary action at law. Now, what is the reasonable construction of the contract as evidenced by the receipt of Harlow, introduced as testimony? He acknowledges the receipt of the second-hand piano, valued at $200, and also of $100 in cash, and for the balance he explicitly states that he is to receive the note of Mrs. Hamilton, indorsed by Sass, payable on the first of April ensuing. This language plainly implies that the note was to be delivered at some future day, and that credit was intended.” This language clearly implied that, if the agreement had been for the immediate delivery of the note, and if it could have been ascertained from other portions of the contract that the note was intended as payment, then the cause for the attachment would have been made out. The decision of this court in the case of Bertiaux v. Dillon, 20 Mo. App. 603, is not in conflict with the conclusions reached by us. There it was held that the contention, that the special contract was evidence of an agreement that the note should be an .-absolute payment, could not be maintained, because
There is another question which we deem it necessary to discuss. It relates to the action of the court in ruling that a certain statement, made by the defendant Azro to one J. M. Jayne, who was an attorney and also a notary public, was a privileged communication. Jayne took the acknowledgment of the defendants to the chattel mortgage to P. P. Daggs. During the interview Jayne asked whether the defendants were getting money from their brother to pay for the-machinery. Azro replied that “a corporation had never heat me or got ahead of me yet; we are like you; we are not here for our health.” The court excluded this statement from the jury.
The statute (R. S. 1889, sec. 8925) provides “that an attorney-at-law shall be incompetent to testify concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of the client.” This statute has been construed to adopt the strict rule of the common law, which excludes evidence of all declarations made to counsel in order to solicit professional advice. Crow v. Reggin, 50 Mo. 335; Wilson v. Goodlove, 34 Mo. 337; Riddles v. Aiken, 29 Mo. 453. But the relation of attorney and client must exist as to the subject-matter of the communication, else the communication will not be privileged. In Johnson v. Sullivan, supra, it was held that the relation of attorney and client existed, when the attorney had been employed merely as a conveyancer to write deeds. In the case of Wilson v. Goodlove, 34 Mo. 337, the communication was held not to be privileged,
Mr. Jayne was examined at great length, and testified in substance that he had previously acted as-attorney for the defendants in one or two suits, but he was not consulted by them in a professional capacity as to the chattel mortgage; that the mortgage was written by Robert Daggs (who is a lawyer or has studied law), and that he (Jayne) was only employed in his capacity as notary to take the acknowledgment of the parties to the mortgage; that the defendants did not consult him about the mortgage, but he suggested that the date of the maturity of the notes described in the-mortgage, and the rate of interest which they bore, ought to be inserted, and that he either made the necessary interlineations in the instrument or filled up some blanks showing these facts. We have read the examination of Mr. Jayne, and it has failed to convince us that the trial judge was right in his ruling, but our minds have been forced to a contrary conclusion. This-evidence was very material to the plaintiff’s case, as it bore directly on the second and last grounds of attachment, and, therefore, its exclusion was clearly prejudicial, and must of itself work a reversal of the judgment.
There are other matters complained of which have been presented and argued in the briefs, but we do not deem it necessary to discuss them, as they are not likely to occur or to become material on another trial.
With the concurrence of the other judges the judgment of the court dissolving the attachment, and also its judgment dismissing the cause, will be reversed and the cause remanded. It is so ordered.