Cole v. Aune

40 Minn. 80 | Minn. | 1889

Vanderburgh, J.

The affidavit for the attachment shows the existence of a fiduciary relation between the parties. The agency of the defendant, the extent of his powers and compensation, were-, clearly defined in the written contract set forth in the affidavit. It also appears that the defendant has wrongfully appropriated to his. own use, without plaintiff’s consent, and contrary to the terms of the contract, a large amount of money belonging to his principal, in excess of the amount due him for his compensation. The affidavit shows a fraudulent conversion of the money sued for, and the plaintiff, therefore, contends that the debt or liability was fraudulently created or incurred, and that a case is made for an attachment, under the provision of the statute which allows the writ to issue “when, the plaintiff’s debt was fraudulently contracted.” Section 145, c. 66,. Gen. St. 1878, allows an attachment in actions for the recovery of money; and section 147 provides for the allowance of the writ when-the plaintiff shall make an affidavit *. * * “specifying the-amount of the claim, and the ground thereof, and that the plaintiff’s.. debt was fraudulently contracted.” The clause last quoted refers-generally to the claim sued on, whether tbe latter is a debt in a strict, technical sense or not. The term “debt” is differently defined, according to the subject-matter and language in connection with which-' it is used. Strictly, it denotes a sum of money due upon contract,, arising from the agreement of parties. In a'more enlarged sense, ifc may mean any just claim or demand for the recovery of money; that which one person owes and is bound to pay to another. New Jersey Ins. Co. v. Meeker, 37 N. J. Law, 282, 301; Newell v. People, 7 N. Y. 9, 124; Com. v. Keeper of the Jail of Philadelphia, 4 Serg. & R. 505. Strictly speaking, a “debt” is said “to be contracted,” and a “liability incurred;” but,, when the term “debt” is interpreted in the enlarged sense, the strict signification of the word “contracted” may also be modified, so as to extend to liabilities other than those directly growing out of the contracts of parties. So held in Carver v. Braintree Mfg. Co., 2 Story, 432. See, also, Robinson v. Vale, 2 Barn. & C. 762. In Armstrong v. Cowles, 44 Conn. 44, a different construction was adopted; but there the statute was in a sense penal in its nature, and a strict construction was proper. Here the statute under ■consideration is a remedial one, and must be liberally construed to advance the remedy. The question to be considered is the. intent of the legislature, to be fairly gathered from the nature and object of the statute, and the context in connection with which the particular words are used. We think the construction of the statute contended .for by the plaintiff is warranted, and that the writ was properly allowed in this case.

Order reversed.