24 S.C. 196 | S.C. | 1886
The opinion of the court was delivered by
On December 31, 1884, the plaintiffs in the cases above stated sued out warrants of attachment, under which the stock of goods in a branch store of the defendant at
The defendant made a motion before Judge Fraser, at chambers, to discharge the attachments based upon his own affidavit and that of J. T.' Dozier, his clerk in the Sumter store. These affidavits substantially deny all the allegations of fraud in the affi
The motions to discharge the attachments were heard upon these affidavits, together with all the papers in the- cases, as well as affidavits submitted by the plaintiffs, “in support of their showing for the attachments,” and affidavits on the part of the defendant in reply. The Circuit Judge held that he was not “at liberty to consider any new facts which are stated on behalf of the plaintiffs to show a fraudulent intent, and, therefore, will not undertake to say how far the statements in reference to them are to be believed. I therefore conclude that the affidavits on which the attachments were issued were insufficient, and that some of the more important facts therein stated are untrue, in the sense that the acts done are the acts of the defendant, the clerk or managing
From this order plaintiffs appeal upon the following grounds: Because of error in holding: I. That the affidavits upon which the attachments were obtained in said cases were insufficient. II. That the said defendant was not responsible for the acts of his- managing agent. III. That he could not consider the new facts stated in the affidavits on behalf of the plaintiffs against'the motion to discharge the attachments.
Upon the first ground, we think that the view taken by the Circuit Judge is fully sustained by the cases in this State. Smith & Melton v. Walker, 6 S. C., 169; Brown v. Morris, 10 Id., 469; Claussen v. Fultz, 13 Id., 478; and Ivy v. Caston, 21 Id., 583. The allegation, that a person has done a certain act with a fraudulent intent, must necessarily be based upon information or belief, and, therefore, in such a case the rule is well settled that the sources of information, or the facts upon which such belief are founded, must be stated. The particular facts stated as to the sales of segars and tobacco at less than cost, do not, in our judgment, warrant the conclusion that the defendant intended to defraud his creditors. We suppose it is not very uncommon for merchants, under certain circumstances, to sell goods for less than cost; and when it is remembered that the defendant was negotiating a compromise with his creditors, which he seems to have had reason to expect would be accepted, he might very well have sold goods at very low prices with the most honest intentions, so as to enable him to get the money to meet promptly his offer of compromise.
We agree with the Circuit Judge, that nothing to the discredit of the defendant could be inferred from his letter to his clerk at Sumter, directing him “to take down the empties and put up the full barrels.” This is just what he would probably do if the compromise was effected, as he had reason to expect would be the case. The delivery of the whiskey to Myers, Edel & Co., as well as the previous shipment to Robert Hough & Sons, is fully explained in entire consistency with the defendant’s honest intentions. The fact that defendant had written a circular letter to his creditors, proposing to pay twenty-five cents on the dollar in
We do not think the second ground of appeal is well taken. While it is true that a principal is liable for the acts of his agent within the scope of his agency, yet this is not universally true. Ordinarily a principal is not liable criminally for the acts of his agent, although he may be liable for the fraud of his agent in the disposition of property intrusted to his care, to whom he has committed the custody of such property, as in Reynolds v. Witte, 13 S. C., 5. But this case' differs materially from that.. There certain negotiable coupon bonds were lodged with the plaintiff’s agent as collateral security for the payment of borrowed money, and fraudulently disposed of by the agent, and the principal was held responsible upon the ground that he had impliedly agreed to safely keep the collaterals until the maturity of the notes given for the borrowed money, and if he failed to do so, whether through the negligence or fraud of the agent to wdiom he had intrusted their custody, he was responsible. Here, however, no element of contract enters into the transaction. The plaintiffs are seeking to enforce the payment of their debts by a severe statutory remedy, which can only be made available where the defendant has done certain things prohibited by the statute; and until it is shown that the defendant has himself done or authorized another to do, some one or more of the things prohibited by the statute, he does not render himself liable to so stringent a proceeding. It is not, in our judgment, a case for the application of the doctrines growing out of the relation of principal and agent. There is no testimony whatever tending to show that the reckless sales of goods in the Sumter store, attributed to the clerk, which, however, are denied by him, were authorized by or even known to the defendant, and we do not think he can be held responsible for them, even if the allegations in the original affidavits as to such reckless sales by the clerk be true, about which there is no little conflict in the testimony.
As to the third ground, we agree with the Circuit Judge, that
The judgment of this court is, that the judgment of the Circuit Court be affirmed.