Adams v. Thornton
| Decision Date | 20 July 1887 |
| Parties | ADAMS v. THORNTON AND ANOTHER. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.
This action was brought by Thornton & Wellborn, suing as partners against James R. Adams, and was founded on an attachment bond, the condition of which was "that the said Adams shall prosecute his said attachment to effect, and pay the said Thornton & Wellborn all such costs and damages as they may sustain by reason of the wrongful or vexations suing out of said attachment." The plaintiffs were engaged in business in Montgomery as merchants; the attachment was sued out against them on the thirtieth of January, 1884, on the ground that they were about to dispose of their property fraudulently, and was levied on their stock of goods; and on the next day they made an assignment for the benefit of their creditors. This action was commenced on the twelfth of May 1884. The complaint alleged that the attachment was sued out both wrongfully and vexatiously, and claimed special damages for the loss and injury to plaintiffs' credit, character and business as merchants. On the first trial the plaintiffs had a judgment on verdict for the full amount of the bond which was reversed by this court on appeal. Adams v. Thornton, 78 Ala. 489. On the last trial, as shown by the present record, the plaintiffs again recovered a verdict and judgment; but numerous exceptions were reserved by the defendant to the rulings of the court, and these rulings are here assigned as error. In addition to the facts stated in the opinion it is only necessary to state the following:
Wellborn, one of the plaintiffs, testifying as a witness for them, stated that, "several days before the attachment was sued out, he had offered to let Adams have goods, at less than New York cost, in payment of his debt;" but Adams, testifying as a witness for himself, denied that such offer was made. In stating the case to the jury, P. T. Sayre, one of the plaintiffs' attorneys, stated that Wellborn had proposed, before the attachment was sued out, to pay Adams in goods. In replying to this, H. C. Semple, in putting defendant's case to the jury, stated that defendant had never heard of that fact before; that he was present at the last trial of the case, and that no such fact had been testified to. In replying to this, Mr. Sayre stated that such fact had been testified to on both of the former trials. No evidence was introduced by the defendant on this point. After the defendant had closed his testimony, the plaintiff examined Mr. Sayre in rebuttal, and asked him this question: "Did Wellborn swear, on the first trial of this cause, that he had offered to pay Adams in goods at New York cost?" to which he answered, "He did." He was then asked, "Why was not such testimony brought out on the last trial?" and answered, "Because plaintiffs' attorneys omitted to inquire about it." The defendant objected to each of these questions as asked, and excepted to their allowance by the court; and these rulings are here assigned as error.
In the interviews between Wellborn and Adams, before the attachment was sued out, something was said by Wellborn about the probability or necessity of plaintiffs making an assignment, if they could not procure an additional loan of money; but the parties differed in their testimony as to what was said in that connection. Among other charges given at the instance of the plaintiffs was the following: "(11) If the jury believe, from the evidence, that Thornton was present, and could have been consulted, or was capable of acting in the matter, Wellborn could not have made an assignment of all the partnership effects, for the benefit of their creditors, without the consent, or against the known wishes of Thornton." To this charge the defendant excepted.
The defendant asked several charges in writing, and among them the following: "(2) If the jury believe, from the evidence, that Thornton & Wellborn would have been compelled to make an assignment, in the event of Adams' failing to loan them more money, and that the making of such assignment would have...
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McGuff v. State
... ... 8 Ala. 647; Whetstone v. Bank, 9 Ala. 875, 886; ... Clement v. Cureton, 36 Ala. 120, 121-24; Sternau ... v. Marx, 58 Ala. 608; Adams v. Thornton, 82 ... Ala. 260, 263, 3 So. 20; Bailey v. State, 107 Ala ... 151, 18 So. 234; Gunter v. State, 111 Ala. 23, 20 ... So. 632, 56 ... ...
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...Appellant also cites State v. Fontenot, 48 La. Ann. 283, 19 South. 114; Davis v. Graham, 2 Colo. App. 210, 29 Pac. 1007; Adams v. Thornton, 82 Ala. 260, 3 South. 20. In none of these cases is the point necessarily involved. Railway Co. v. Sullivan (Civ. App.) 190 S. W. 745, is also cited; t......
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