Goldsmith, Forcheimer & Co. v. Picard

27 Ala. 142 | Ala. | 1855

G-OLDTHWAITE, J.

In the case of the Planters and Merchants’ Bank v. Willis & Co., 5 Ala. 770, it was held by this court, that the amendment of the pleadings, at any time before the case was submitted to the jury, was a matter purely within the discretion of the court, and for that reason was not revisable here. This disposes of the question presented by the fourth assignment of error.

The affidavit on which the attachment was founded, and the allegations in relation to the making of the same, are set out in the declaration only by way of inducement — not as a statement of the injury, but simply as a statement of the circumstances under which the injury was committed (1 Oh.‘ PL 326) ; and although it might have been omitted, and the declaration still have been good, no prejudice could result to the defendants from not striking it out. So, also, as to the allegation of injury to the feelings : whether this is one of the consequences resulting from the suing out of the attachment, which the jury could legitimately take into consideration, it is not necessary now to decide ; for, if they could not, still no prejudice could result to the defendants from the insertion of it, as the plaintiff cpuld derive no right to recover for consequences which could not legally enter into the damages, although they were stated in the declaration.

In relation to the averments as to the loss of credit and business : we think they were proper, as one of the natural consequences of suing out an attachment against a merchant, on the ground of fraud, would be to affect his credit and business injuriously (Donnell v. Jones, 13 Ala. 490) ; and as injuries of this character might legitimately be considered by the jury, they were not improperly inserted in the declaration. There was no error prejudicial to the defendants, in overruling the motion made to strike out of the first count the allegations to which we have referred.

What we have said in relation to the action of the court below on the motion to strike out, applies to the demurrer to the first count. The affidavit ivas not Of the gist of the action ; it might be entirely struck out, and a good cause of action remain upon that count.

Neither was there any error in refusing to suppress the depositions which had been taken before the filing of the amended declaration. If the issue was substantially varied— if the testimony required to sustain the last issue was different from that which was necessary to sustain the first, or if any portion of the deposition was inapplicable, under the changed state of the pleadings, by bringing it to the notice of the court, the rights of the defendants could have been guarded. But this was not done — no specific objection was made to the depositions, and no ground or reason assigned for their suppression, except that they were taken before the amended declaration was filed. If, as we have said, the issue was substantially the same, there was no reason for the parties incurring the trouble, expense, and delay consequent upon a re-taking; and if not, the party should have shown that they were inapplicable to the issue as then made up. .

It appears from the record, that on the trial the plaintiff offered in evidence an affidavit and writ of attachment, which corresponded in all respects with the affidavit and attachment described in the declaration, except that it was uncertain whether the day of the month on which they bore date was the 25th or the 26th, the figures 5 and 6 having both apparently been written and blended together. In connection with this testimony, the plaintiff offered the clerk of the court who issued the attachment, who testified, that the figures were intended for 25, — that the attorney had by mistake written 26, and that he corrected the error by writing the true date. This evidence, in connection with the affidavit and attachment, was permitted to go to the jury, and the action of the court in this respect is assigned for error. Upon general principles, we should entertain no doubt, where a writing of any sort is obscure from the manner in which it is written, that parol evidence would be admissible to decipher it. But there is no want of authority directly to the point. The question was decided, more than a century since, by Sir Joseph Jekyll, Master of the Rolls, in Masters v. Masters, 1 Pr. Wms. 422. There the legacies in a will being written “ blindly and hardly legible”, it was referred to a master to examine and report what those legacies were, “the master to be assisted with such as understood the art of writing,” ' So, in Norman v. Morrell, 4 Ves. 769, where a legacy was written in figures, and the question was whether it was ¿£300 or ¿£800, it being insisted that the first figure was originally 3, but had been altered to an 8 by drawing the pen over it, and extending the lower and upper parts of the figure towards the centre ; an issue was directed to ascertain the fact. Goblet v. Beechly, 3 Sim. 24, is to the same point, and also Reman v. Hayward, 2 Ad. & El. 666, and Armstrong v. Burrows, 6 Watts.

In relation to the conversation which occurred between the witness Webb and the defendant Morrison, it is to be observed, that the issue was, whether the defendants wrongfully and maliciously sued out the attachment, and .caused it to be levied on the property of the appellee ; and that under this issue, any evidence which tended to establish the fact that either of the appellants procured the attachment to be issued, or levied, would be relevant. The admission made by one of them’is, in effect, that he had agreed to find the property of the plaintiff to be levied on, if a third person, whose attachment was first in the sheriff’s hands, would yield the preference to the attachment for the suing out which the suit was brought, and which was subsequently levied- on the property pointed out by Morrison. This, at least, tended to show that he was instrumental and active in procuring the-attachment in favor of himself and the other appellants to be levied, and was directly involved in the issue ; and as it was admissible for that purpose, it was not error that it was received by the court for another, as the other party could have limited its effect by ashing the necessary instructions. — Cook & Scott v. Parham, 24 Ala. 21.

As to the admission of the attachment and levy in favor of Manuel Forcheiiner, it may be conceded that the defendants could not be held responsible in the present action for the part taken by one of them in causing that attachment to be levied. But the record shows that the attachment in favor of the appellants had been offered, and that from its return it appeared that the goods levied on had first been taken upon the other attachment, which therefore had the prior lien. UpoD this state of facts, the appellants might have urged, in mitigation of damages, that the goods taken by their attachment bad been, first taken upon another in favor of a different party ; and to rebut any inference prejudicial to them arising from this circumstance, it would have been proper for the appellee to show that the property thus taken was more than sufficient to satisfy the attachment first levied ; and the initiatory step would have been the introduction of it and the levy. — Cuthbert v. Newell, 7 Ala. 457.

In relation to the action of the court in admitting the testimony of the witness Dickinson : we incline to the opinion, that in actions like the present, proof as to the general credit or reputation of the plaintiff would not be admissible, until it was assailed. — Rodrigues v. Tadmere, 2 Esp. N. P. C. 720 ; 2 Ph. Ev. 258. But in the present case, the record shows that the credit and reputation of the plaintiff was put in issue by the evidence. As, therefore, it was competent for the witness to speak as to his reputation, and his testimony was directed to that point, it was not error for the court to overrule a general objection. Evidence as to character was admissible, and if it was supposed that the witness had shown from his examination that he was not qualified to give evidence ás to the fact in question, the mind of the court should have been directed to it by a specific objection on that ground. The court is not bound to hunt for the particular ground on which' a general objection may be sustained under such circumstances. — Wallis v. Rhea, 10 Ala. 451; Milton v. Rowland, 11 ib. 732 ; Donnell v. Jones, 13 ib. 490.

Our conclusion, upon the whole record, is, that the judgment must be affirmed.