63 Mo. App. 141 | Mo. Ct. App. | 1895
The evidence tends to show that defendant was engaged in the sale of house furnishing goods on time payments; that on July 16, 1891, he sold to plaintiff, who was conducting an eating house, a range, cooking utensils and queensware, at the price of $97, $20 of which was paid in cash, and that a note for $77 was executed for the remainder and secured by a chattel mortgage on the property. It was agreed that the sum expressed in said note should be paid in monthly installments of $10. This amount was paid in August. On September 9, plaintiff called upon defendant and offered to return to him the goods for the balance of $67 then due. Defendant testified that plaintiff then stated that she intended to go to Pennsylvania to live; that her father living in Philadelphia had died leaving her property, and she intended to quit business. Plaintiff denied making any statements as to her removal or intention to remove from this state. Defendant testified that he communicated these statements to his attorney, and was advised to attach the property of plaintiff. Such a suit was begun upon the affidavit of defendant (1), that plaintiff was about to leave the state with intent to change her domicile; (2) that she was about to move her property and effects out of the state with intent to defraud her creditors. The writ thereupon issued was levied by the constable upon the mortgaged effects and other goods of the plaintiff, including a trunk containing the wearing apparel of herself and children, and the property thus seized was placed for custody in defendant’s store. The attachment thus begun went by change of venue to another justice, who dismissed the case. Thereupon defendant
The first instruction given for plaintiff by the trial court submitted to the jury the question of the sufficiency of ‘The facts and circumstances shown by the evidence to have been within the knowledge of defendant at the time of making the affidavit” to warrant a reasonably cautious man in the belief of the truth of the'grounds stated in'the affidavit for attachment. This instruction was improper in the present case, since the only evidence relied upon by defendant to show probable cause was the alleged statements made to him by plaintiff. In McNichols v. Wise, supra, it is held that the truth of the grounds alleged for an attachment may be shown by evidence of the admissions or repre
Defendant asked an instruction, which the court gave with the addition of the portion printed in italics. As given, the instruction is to wit: “The court instructs the jury that, even though they may believe from the evidence that defendant did not have probable cause for instituting the attachment, yet plaintiff is not entitled to recover upon the theory of a malicious attachment, unless she further shows to the satisfaction of the jury that defendant, at the time he commenced said attachment, knew that both grounds alleged in his affidavit were untrue, or shows to your satisfaction that the facts and circmnstances, shown by the evidence to have been within his knowledge at the time he made said affidavit and commenced said attachment, were not sufficiently strong in themselves to warrant a reasonably cautious man in the belief that both said grounds were true.” This matter added by the court was incautiously expressed, for by it the jury were told, in effect, that it is not enough to show probable cause for the attachment that defendant had sufficient reareasons to believe in the truth of one of the grounds of attachment alleged in his affidavit. This proposition was'an incorrect statement of the law.
Eor the foregoing reasons, the judgment herein will be reversed and the cause remanded.
