1 S.D. 172 | S.D. | 1890
This is a proceeding by attachment. On the 7th day of September, 1889, a motion to vacate the attachment was presented to the court; and on the 11th day of September, 1889, the motion was sustained, and the warrant of attachment was vacated. Prom this order plaintiff appeals.
The affidavit presents two grounds for the issuance of the warrant of attachment. First, that the debt was contracted for property obtained under false pretenses; second, that the defendant has disposed of, and is about to dispose of, his property, with intent to defraud his creditors. These allegations of the plaintiff were denied by the defendant, on his motion to vacate, in a clear and complete manner.
The only question presented is, does the evidence sustain the judgment of the court below. The statute requires the circuit judge or circuit court to hear the proofs and allegations of the parties; and, if a good and legal cause for suing out the writ is not satisfactorily made to appear to the court upon such hearing, it is its duty to dissolve the attachment, and, order the property returned to defendant. The affidavit of the plaintiff, his agent or attorney, is prima facie sufficient cause for
As to whether the property f'or which the debt was contracted -was obtained by false pretenses, it appears from the evidence that the defendant, George B. Wilmarth, had been since 1881 a dealer in general merchandise in the village of De-Smet, Kingsbury county, Dak., and had been doing quite an extensive business; his sales amounting some years to over $20,-000. On the 16th day of April, 1888, being desirous of purchasing a bill of goods of the plaintiffs on credit, he made to them the following general financial statement of his assets and liabilities:
‘ ‘ASSETS.
Cash value of stock in store.........................................$ 7.500
Cash on hand or in hank............................................ 200
Outstanding- accounts considered good............................... 1,000
Judgments............................................... 500
Notes not secured, considered good................................. 1,000
Notes and accounts considered doubtful............................. 500
Real estate, 100 acres...............................%.............. 1,000
32 lots, dwelling, and barn in LeSmet................!.............. 2,500
$14,200
*176 “LIABILITIES.
For mdse, on open aec. not due................■....................$ 595
For mdse, on open ace. past due..................................... 1,100
For mdse, closed by note not due................................... 200
Mortgage on homestead, due May 18, 1889........................... 200
Mortgage on homestead, due May 18. 1890........................... 600
Mortgage on other real estate, due 1890.............'................ 350
$3,045”
—Leaving him worth, above liabilities, the sum of $11,155. The plaintiffs state that, relying upon the truth of this statement. they then opened an account with the defendant, and at various times during the years 1888 and 1889 sold him goods a& he ordered them; the defendant in the mean time paying cash on his account .until July 24, 1889. A balance being then due to plaintiffs of $483.91, they commenced a proceeding against him by attachment. The above financial statement is the only one defendant ever made to the plaintiffs, and they allege it was false at the time it was made, in these particulars: (1) The defendant stated the mortgage on real estate to be $350, when it, in fact, was $400; (2) that he was the owner of 12 lots in DeSmet, worth $2,500, when in fact he owned only 6 lots, worth $1,300; (3) that he was indebted to his father in the sum of $128.26, of which he made no mention. These are the only tangible variations that the evidence tends to show in the statement, and militating against the truth of it, making, if true, a difference of $1,378.26. No other portions of the statement are attacked, except, inferentially, as to the amount of stock on hand at the time of. the attachment in July, 1889, which was $3,619, showing a shrinkage in value or by sales, since April 16, 1888, of $3,881. The defendant in explanation of these variations and discrepancies, states that, at the time the financial statement was made to the plaintiffs, it was substantially true, except as to the indebtedness of $128.26 to his father, and, as that was not entered upon his books, it was overlooked at the time; and, as to the amount of goods on hand at the time of making the statement, he says that in January, 1888, he made an invoice of his stock of goods, and the invoice showed that he had at that time of — ■
*177 Groceries.........................................................$1,680 27
Dry goods and notions.......................................... 3,194 23
Glass, queon’s-ware and stone-ware.............................. 254 65
Hoots and shoes.................................................. 1,839 76
Fixtures, including sale, show-cases, etc.......................... 1,040-00
Total.......................................................$7,999 91
The record does not disclose the amount of sales or purchases made, from time to time, from January, 1888, to July 24, 1889, but defendant show’s that the season of 1888 was a very depressing one in business; that the entire country tributary to the town of De Smet was visited by a severe hail storm, and crops were almost totally destroyed; that, in consequence of this, but little was done by way of business; that during that year his family, store and rent expense was very large, all of which necessitated the outlay of a large sum of money. None of this evidence was controverted by the plaintiffs.
Under this state of facts, can it be said the defendant was guilty of obtaining goods under false pretenses? We think not. To constitute the offense, several things must concur. There must be an intent to cheat or defraud some person. For that purpose, some false pretense must be designedly used, and the fraud must be accomplished by means of the false pretense; or, if not wholly by that means, it must have had so'material an effect upon the mind of the party defrauded that without it he would not have parted with the money or property alleged to have been fraudulently obtained. It may be that she statement made by the defendant April 16, 1888, was not, strictly speaking, absolutely true in all particulars. Yet, were the misstatements made with the intention to deceive or to defraud the plaintiffs, or did the plaintiffs act under them so as to be deceived or defrauded in the transactions w’ith the defendant? The acts of the defendant, and the circumstances surrounding the transactions between the defendant and plaintiffs, clearly show the contrary. The goods purchased at the time when the statement was made were all paid for, and circumstances over which the defendant had no control had intervened to change the financial status of the defendant during the months between
Were we in doubt of the position assumed by us in the case before us, we think it would be removed by the following extracts from a letter received by the defendant from the plaintiffs under date of January 9, 1889 — some eight months after the statement had been made which is claimed to be false — which are as follows: “Your account is a very desirable one for any
As to the second cause for an attachment, that the defend