73 Mo. App. 154 | Mo. Ct. App. | 1898
This is a suit in attachment wherein. plaintiff had judgment on the plea in abatement as well as on the merits, and defendant appealed.
Plaintiff's claim arose out of a contract it had with defendant to furnish the materials and do the work in decorating a drug store in Kansas City, for which defendant agreed to pay plaintiff $2,700-one half thereof to be paid during the progress of the work and the balance ninety days after the same was finished. The work was completed, the half of the price was paid, but the other half was not, and this suit was brought, based on notes given for said remainder, and also on an account for $111.59 for extras. In aid of the action plaintiff sued out an attachment on the alleged statutory ground that "the debt sued for was fraudulently contracted on the part of the debtor."
The principal assignment of error is thus stated by defendant’s counsel: “that the action by attachment on the ground that the debt for which suit is brought was fraudulently contracted on the part of the debtor, can not be sustained, where the plaintiff affirms and sues upon the contract as made.”
■ As indicated to counsel at the oral argument, this strikes us as a rather remarkable proposition. Let us consider it in the light of the now conceded facts of this case. By false and fraudulent representations made to plaintiff by defendant in relation to his finan
We think there is no merit in the contention. The words of the statute’serve as a complete answer to the position taken. It reads that “the plaintiff in any civil action may have an attachment against the property of the defendant * * * in any one or more of the following cases: * * * . (14) Where the debt sued for was fraudulently contracted on the part of the debtor.” R. S. 1889, sec. 521. Is it not there plainly intended that the creditor may sue on the contract as made, and at the same time attach for uthe debt sited for” because the defendant had fraudulently contracted the same? The “debt sued for” or contract alleged in the petition, must be the same debt or contract which the defendant is charged in the affidavit with having fraudulently made. It is true that by suing on the fraudulent contract plaintiff thereby ratifies and affirms the same, but this in no manner estops the plaintiff from grounding an attachment on the defendants’ wrongful act. In such cases plaintiff has an option — a
There can be no doubt as to the sufficiency of the petition. Kritzer v. Smith, 21 Mo. 296. Judgment affirmed.