12 Neb. 610 | Neb. | 1882
In August, 1879, the plaintiffs commenced an action •■against the defendants in the district court of Lancaster ■county, to recover the -sum of $2,246.20, and caused an ••attachment to be issued and levied upon their property, the grounds for the attachment being that the “ defend-ants fraudulently contracted the said debt, and fraudulently incurred the obligation for which suit has been brought.” The attachment was dissolved in the court below on the motion of the defendants and the attached property discharged.' The cause of complaint in this ■court is error in dissolving the attachment.
' The affidavit of Albert D. Pickering used on the hearing below shows the following facts: “ That he is one of the above named plaintiffs and a member of the firm of Wm. Young & Co., doing a general commission business in the city of Chicago, and state of Illinois; that for a long time, to-wit: from the 27th day of January, 1881, do the 28th day of July, 1881, said plaintiffs were doing a .general and continuous business with said defendants, by advancing money for the purpose of enabling said defendants to purchase live stock and ship the same to plaintiffs in the city of Chicago, to be sold upon commission as is agreed and more particularly admitted by said defendants in affidavits filed herein; that there had been a .running account between plaintiffs and defendants during said time; that the greater portion of the business as -carried on between plaintiffs and defendants as aforesaid was carried on by one Wm. H. Sibley, agent of said plaintiffs, who resided in the city of Lincoln, in the state of Nebraska. That on or about the 17th day of June, 1881, the said defendant, Willard Cooper, called upon the affi-. •ant in the city of Chicago, and examined the running an-■count as aforesaid, and then found and agreed with this •affiant, that there was a small balance due and owing.
Mr. Pickering is corroborated by the affidavit of W. C. Fulton, his clerk, and also by W. H. Sibley. At the time Cooper & Co. drew the draft in question, they sent to the plaintiffs a letter, of which the following is a copy:
Bennett, 6 — 21, 1881.
Wm. Young & Co. Dear Sir : Have made draft on you for two thousand dollars. We have one hundred and twenty-five hogs bought, will have two hundred by Saturday. Lots of hogs for sale now. Are pajdng $4.60-75 for good ones. Yours,
Willard Cooper.
Four days thereafter and after the draft in question had been sent, and probably paid, the defendants sent the following letter to the plaintiffs:
Bennett, 6 — 25, 1881. -
Wm. Young & Co. Gentlemen. I have sold the hogs for this week and will have two cars of cattle the 1st day of July, and three cars of hogs. Send me statemerit of our account. Will see Sibley then immediately and fix our matters all up, and pay balance due you, then when we*614 ship the stock, take a new start entirely. • When we ship, will notify you and will not want to draw any more than the stock comes to. Want to keep balance in my favor.
Yours truly,
Cooper & Co., per G.
E. A. Kilborn, one of the defendants, filed an affidavit in the case, in which he states that the entire amount of the defendants’ transactions with Young & Co. amount to-$69,000.00, and that the action is brought for a pretended balance, and that the defendants are not indebted to the plaintiffs in any sum whatever.
The defendant, Cooper, filed three affidavits made by himself. In the first he alleges that the defendants are solvent, denies that the debt was fraudulently contracted, and alleges that he had, previous to the commencement of the action, offered to pay the plaintiffs any balance due-them. In the second he denies that he is indebted to the plaintiffs in any sum whatever, but alleges that the “ plaintiffs were to aid and furnish this affiant with money to buy stock; * * * that he is a local stock dealer in Lancaster county, and as such, in pursuance of the aforesaid agreement and its further provisions, did ship to said plaintiffs stock as aforesaid, and that he was, in pursuance of said agreement, given credit to the amount of the sales of stock shipped plaintiffs an account for moneys advanced as aforesaid,” etc. It is also stated, there is a balance due the defendant from the plaintiffs of the sum of $1,800.00, and he again denies that he has committed any fraudulent act. In the third he states that -the $2,000.00 paid on the draft in question was received on the old arrangement, and that the only change made was to deal directly with the plaintiffs, and not through W. PI. Sibley. He also states that at the date of the-draft in controversy the defendants had purchased and paid for the hogs mentioned in his letter with their own-money. There is an entire failure however either to deny-
‘ ‘ Where a party intentionally or by design misrepresents a. material fact, or produces a false impression in order to mislead another-, or to entrap or cheat him, or to obtain an undue advantage of him, in every such case there is positive fraud in the truest sense of the terms. There is an evil act with an evil intent, dolum malum ad circumveniendum. And the misrepresentations may be as well by deeds or acts, as by words; by artifices to mislead, as well as by positive assertions.” Story Eq., sec. 192.
The judgment of the district court is reversed, the attachment reinstated, and the cause remanded for further proceedings.
Reversed and Remanded.