29 Kan. 143 | Kan. | 1883
The opinion of the court was delivered by
On the 1st day of August, 1882, the plaintiffs commenced their action against the defendant to recover upon a certain promissory note, executed the 28th day of July, 1882, by the latter to the former, for the sum of $737.37, and bearing interest from date at the rate of ten per cent, per annum. At the commencement of the action, the plaintiffs obtained an attachment against the property of the defendant, and levied thereon. The affidavit for attachment contains three grounds, viz.: -
(1) “ That the defendant is about to convert his property into money for the purpose of placing it beyond the reach of his creditors; (2) that the defendant,has assigned and disposed of his property with the intent to hinder, delay and defraud his creditors; (3) that the defendant fraudulently contracted the debt for which suit is about to be brought.”
On the 12th of August, 1882, the defendant filed his motion asking a dissolution of the attachment, and the discharge of the property taken thereunder, and in such motion denied the truthfulness of the-attachment affidavit. Upon the hearing at the September term of the court for 1882, several affidavits were read and considered; the court sustained the motion, and ordered the attachment discharged and set aside. The order and ruling of the court are complained of.
It is insisted that the affidavits proved that the defendant had disposed of his property to delay, hinder and defraud his creditors, and that the debt sued upon was fraudulently contracted. It appears that on the 15th day of July, 1882, the defendant executed to Edgar Hull a chattel mortgage to secure $535.50; but.this mortgage was executed to secure an actual indebtedness, and at the time of the attachment the sum of $314.39 had been paid thereon. The evidence concerning this mortgage in no way proves or tends to prove that the defendant had any idea or intention at its execution
Concerning the claim that the debt sued upon was fraudulently contracted, it is contended that at the time defendant contracted the debt with plaintiffs he was insolvent,'and that as he concealed such fact from the sellers, it was, considering the' other circumstances in proof, such a measure of bad faith as constituted a fraudulent contracting of the debt within the meaning of the attachment law. The facts do not in any way show that the debt was fraudulently contracted. There is nothing in the evidence that he made his purchases at other than the usual times, and in the regular course of his business. No false or other improper representations were made by him at the time of his purchases to the plaintiffs or other parties in regard to his condition tending to mislead and induce them to give him credit which they would otherwise have withheld. It is true that some of the evidence tends to show that for some time he had been running behind; to use his own words, “going down for several years; ” that'his trade was falling off, and his business drifting rapidly in a bad condition; but there is ño evidence showing intentional conceal
Now, to sustain the claim of plaintiffs upon the ground of fraud, the affidavits must have established that defendant made the purchases of plaintiffs with the preconceived design not to pay, or what is the same, that he intended to commit a fraud at the time he made his purchases of the plaintiffs, which were not paid for at the commencement of this action, and that he deliberately proceeded to consummate such fraud. This is not shown. The most that can be alleged, and which was proved upon this point, is that defendant at the time of making his purchases was going down, and had been for years, and that of this fact he failed to advise the vendors at the time.