Troy v. Rogers

| Ala. | Nov 15, 1896

HEAD, J.

In au action upon an attachment bond, it is not material that the defendant in attachment, at the time it was sued out, had no property except such as he was entitled to claim and hold as exeunt from the payment of debts, unless, it may be, in connection with other evidence, the fact be admissible, evidentially, as tendizig to show malice or vexation on the part of the plaintiff suing it out. The statute prescribes the grounds upon which an attachment may be obtained, and if one of those grounds exists, the remedy is not wrongfully resorted to, whether the defendant had or had not property subject to the writ. The fourth count of the complaint was clearly bad, and charges 15, 16 and 17 requested by plaintiff were properly refused.

The cross-examination of plaintiff (defendant in attachment) in reference to his effort to sell his horse, rifle and furniture to Wellborn, and his statement that he expected to go to Georgia to sell gum, was proper upon the inquiry whether or not he was about to remove out of the State, at the time the attachment was sued out. The evidence called for was of his own acts and declarations, against interest, tending to show a purpose on his part to remove from the State, shortly before the attachment was sued out, and no question of ros gestee was involved. In the case cited by counsel, the declarations were sought to be introduced in favor of declarant, or against a claimant, and not against declarant himself, as in this case.

On like considerations, the exceptions to testimony of defendant, Rogers, of a like nature, were not well reserved.

The testimony in reference to certain proceedings in the probate court, and investments by the plaintiff in J. M. Fisher & Co., and the omission by plaintiff of certain-articles from his exemption schedules, were expressly excluded from the jury by the court, and the jury instructed not to consider the same. The matter, therefore, is not proper for assignment of error here.

The attachment in question was sued out on the statutory ground that the defendant therein was “about to remove out of the State. ’ ’ The plaintiff now insists that not only an intent, about to be carried into effect, to remove out of the State, but an existing intent to acquire a residence or home in some other State or country, is essential to the existence of this ground of attachment. We think the contention adds to the statute. It is only necessary that the debtor is' about to remove out of this State, with no fixed intention of returning, and it is not material whether he has determined upon a new residence or home for himself elsewhere or not. The charges requested by plaintiff asserting the' principle contended for were properly refused.

Charge 6 is argumentative.

The general charge requested by plaintiff was properly refused.

■ Charges 26 and 27 were abstract as to some of the items of damages which they required the jury to assess in favor of the plaintiff. As to the horse.levied upon, the proof shows it was awarded to the plaintiff on the contest of exemptions, and, we presume, was delivered to him, yet the charge demands for the plaintiff its full value. There was no proof of costs and expenses which plaintiff had been subjected to in defending the attachment suit and in having the horse declared exempt, nor of travelling and other expenses in attending court, nor of how long the plaintiff was deprived of the use of the horse. There was proof of what was a reasonable attorney’s fee for defending the attachment suit and asserting the claim of exemption, but none that plaintiff had incurred such an expense, paid or unpaid.

The defendant, Rogers, who was plaintiff in the attachment, testified that three or four weeks prior to the suing out of the attachment he had a conversation with Troy, the plaintiff, in which he, Troy, stated that he was ‘ ‘going to shake the dust of this country off of his feet; that the Elyton Land Company had reduced his salary to $75 a month.” In view of this evidence, the trial court, at the request of defendants, charged the jury as follows: “If the jury believe from the evidence that the plaintiff, before the suing out of the attachment, in substance, said to the defendant that he was about to remove out of the State of Alabama, and defendant, honestly acting on said statement, sued out said attachment on the ground that plaintiff, Troy, was about to remove out of the State, believing and acting on it as a fact that plaintiff was about to remove out of the State, then plaintiff is estopped to deny that he was about to remove out of the State.”

The constituents of an estoppel by conduct, as they were stated by Mr. Bigelow in his work on Estoppel (1 ed., p. 489) are: 1. A representation or concealment of material facts ; 2. The representation must have been made with knowledge of the facts ; 3. The party to whom it was made must have been ignorant of the truth of the matter ; 4. It must have been made with the intention that the other party should act upon it; and 5. The other party must have been induced to act upon it.

Consideration of the first and fourth of these propositions will determine the instruction to have been erroneous.

1. “The .representation or concealment,” says Mr. Bigelow, “must in all ordinary cases, have reference to a present or past state of things ; for if a party make a representation concerning something in the future, it must generally be either a mere statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract, with the peculiar consequences of a contract. The point is well illustrated in a recent case in Massachusetts (Langdon v. Doud, 10 Allen, 433) where the plaintiff sued the defendant as maker of a promissory note, to which the statute of limitations was pleaded. The plaintiff introduced evidence to show that in March, 1855, the defendant, who then lived in Massachusetts, told the plaintiff that he was going to California in about a month from that time never to return, and would within that month pay the note, and that he left for California the next day and remained there until the autumn of 1858, when he returned to Massachusetts. The plaintiff also offered evidence to prove that he was induced by the defendant’s statement to believe that the defendant never would return to Massachusetts, and, therefore, did not bring any suit during his absence believing that the defendant intended to reside in California, and that if he should happen to return, the time of his absence would be excluded; but the evidence was not received.” The court said, among other things, that the representation was “only of a present intention or purpose. It was not a statement of a fact or state of things, actually existing, or past and executed, on which a party might reasonably rely as fixed and certain, and by which he might be properly guided in his conduct, and induced to change his position in the manner alleged by the plaintiff. The intent of a party, however positive and fixed, is necessarily uncertain as to its fulfillment, and must depend on contingencies and be subject to be changed and modified by subsequent events and circumstances. Especially is this true in regard to the place of one’s domicile. On a representation concerning such a matter no person would have a right to rely, or to regulate his action in relation to any subject in which his interest was involved as upon a fixed, certain and definite fact or state of things, permanent in its nature and not liable to change. A person cannot be bound by any rule of morality or good faith not to change his intention, nor can he be precluded from showing such a change merely because he has previously represented that his intentions were once different from those which he eventually executed. The reason [of the doctrine of estoppel] wholly fails when the representation relates only to a present intention or purpose of a party, because, being in its nature uncertain and liable to change, it could not properly form a basis or inducement upon which a party could reasonably adopt any fixed and permanent course of action.” The applicability of this principle to the statement of Troy, giving the statement its strongest possible intendment against him, is apparent without comment; and,

2. It needs but to be said that the statement shows upon its.face that it was no more than a casual declaration made in relation to no business affair or transaction with Rogers, and never intended by Troy to be acted on by Rogers, or any one else, in reference to any affair of business.

The refusal of charge three was justified by the requirement therein made, that the existence of cause of attachment must not have been in the belief of the defendant, Rogers. The belief of Rogers in the matter was of no importance except upon the measure of damages, and, if ground of attachment existed, it certainly was not impaired, as a defense to this action, by the fact that Rogers believed it existed. But for this defect— inadvertent, no doubt — the charge would have been good.

Charge 12 ought to have been given.

The record of the judgment obtained by the plaintiff in the attachment suit was irrelevant, since there was no issue made as to the fact of the indebtedness.

Reversed and remanded.