Brand v. Hinchman

• Decision Date: 02 March 1888
• Citation: 36 N.W. 664,68 Mich. 590
• Court: Michigan Supreme Court
• Parties: BRAND ET AL. v. HINCHMAN ET AL.

36 N.W. 664

68 Mich. 590

BRAND ET AL. v. HINCHMAN ET AL.

Supreme Court of Michigan

March 2, 1888

Error to circuit court, Wayne county.

MORSE J.

Plaintiffs sued defendants for a malicious prosecution of an attachment suit. They recovered verdict and judgment for $625 in the circuit court for the county fo Wayne. On the 4th day of August, 1885, John M. Hinchman, one of the defendants, and in their behalf, made affidavit and obtained a writ of attachment in the superior court for the city of Detroit against the plaintiffs. The affidavit alleged that the plaintiffs were indebted to the Hinchmans in the sum of $473.11 over and above all legal set-offs, and that the same was due upon express contract. Also, that the said plaintiffs, as the deponents in the affidavit had good reason to believe, were about to assign their property or dispose of it with intent to defraud their creditors, and were about to conceal their property, or some part thereof, with intent to defraud their creditors. The writ was left at the sheriff's office, and put in the hands of a deputy for service. This deputy, with another officer, proceeded to the store of the plaintiffs between the hours of 2 and 3 o'clock in the afternoon of the day the writ issued. He saw one of the plaintiffs, Mr. Brand, sitting at the desk and informed him that he had a writ of attachment in favor of Hinchman & Sons, the defendants in this action, and against plaintiffs. He exhibited the writ to Brand. Brand said the matter was settled, and asked time to see Hinchman & Sons, or their attorneys; which was granted. The officer swears that he told Brand he would stay in the store until he returned and would make no levy. He testifies further that he made no levy, and did not take possession of the store or any of the goods therein. He claims he remained in the store not more than half an hour, when Mr. Berry, a clerk in Hinchman & Sons' attorneys' office, came and told him to go out, as the matter was arranged. He claims he did not serve the writ. The writ was returned by the sheriff August 13, 1885, with the following indorsement by the attorneys for Hinchman & Sons: "To the clerk. Please enter an order discontinuing this case." The return was as follows:

"By direction of the plaintiffs' attorneys, I hereby return the within writ without service, the case having been discontinued.

"GEORGE H. STELLWAGEN. By H. H. TRAINOR, Deputy Sheriff."

On the 10th day of August, 1885, the plaintiffs in this suit paid the debt to Hinchman & Sons, and seven dollars as costs of suit. Mr. Brand testifies that the officer showed him the writ, and said he had an attachment against his goods. Brand left the officers in the store when he went to see Hinchman & Sons. They were gone when he returned. Mr. McCullough swears that he came to the store soon after Mr. Brand went out. The officers were in the store when he arrived, and remained there about half an hour after he came. The officers said nothing to him about the attachment, but he suspected it. It appears clearly enough from all the evidence that no formal levy or service of the attachment was made, and no manual possession or disturbance made of the goods; yet the officers virtually had a possession of the store while they stayed there, and one of them testified that, had any one attempted to remove any of the goods out of the store, he should have interfered and prevented it. Some evidence was introduced as tending to show damages, as follows: Plaintiffs had been, before this, doing business with J. C. Wemple & Co., of New York, purchasing goods of them on credit. August 12, 1885, they gave an order to this firm, through an agent, for a bill of goods, amounting to $136, informing him of the attachment proceedings. About a week thereafter they received a letter from Wemple & Co., stating that if plaintiffs would pay cash for the goods they would send them and give a discount of 3 or 4 per cent. The plaintiffs then countermanded the order. A truckman brought a barrel of glue to the store. He wanted the money for it. No one but a clerk of plaintiffs was at the store. He did not know whether the bill for the glue was correct or not, and would not pay it, and the truckman took the glue away. It was also shown, under objection, that the following paragraph was published in the Detroit Free Press of August 5, 1885: "In the superior court, yesterday, T. H. Hinchman & Sons swore out an attachment against Charles R. Brand and Gilbert McCullough." Mr. Brand testified that one Anderson, an architect, told him that he had wished him to figure on a job of Edward Kanter, but thought there was no use, as the architect had heard there was an attachment upon their property, and plaintiffs closed up. When he found out they were all right it was too late, as the bids had been received and the job let as $1,100. Brand was permitted to testify, against objection, that the profits upon the job at $1,100 would ordinarily be from 10 to 20 per cent. "It might be more; it might be less." The plaintiffs also introduced evidence tending to show that they were solvent, and able to pay their debts at the time of the attachment, and had not assigned, disposed of, or concealed any of their property with intent to defraud their creditors, and had no intention of so doing. Defendants' counsel, when plaintiffs rested, moved to strike out the testimony in relation to the Wemple transaction and the barrel of glue; also the testimony of A. H. Dey, president of the American Exchange National Bank, who had testified that the plaintiffs were depositors and borrowers at his bank for a number of years, and that he knew nothing against their reputation for honesty and integrity in the community. The defendants' motion was denied as to all this testimony, and exception taken. The defendants made no showing as to any facts upon which they based their affidavit for the attachment writ except that the plaintiffs refused to give Mr. Berry, a clerk in the office of Griffin & Warner, who had the bill of Hinchman & Sons for collection, any statement of their assets and liabilities, and did not meet some of their premises to pay the debt. John M. Hinchman, who made the affidavit, testified that he, at the time of making it, fully believed that he had good reason to believe as therein stated. He also testified that Brand said, in excuse for non-payment of the bill, that McCullough was frequenting saloons in business hours, and did not attend to business, leaving the whole burden upon him, and Hinchman also thought that he had seen McCullough under the influence of liquor, which influenced his judgment about the matter. On cross-examination he stated that the refusal of Brand & McCullough to give their assets and liabilities to Berry cut no figure, and had no bearing upon his intention or mind when he made the affidavit, and that he had heard nothing of any disposition of property by plaintiffs at that time, and could not remember that he had heard of any concealment of their property with intent to defraud creditors. He was afraid of a chattel mortgage that might be made upon the stock to shut off creditors, but did not remember of hearing any one say that plaintiffs were about to make such a mortgage. The plaintiffs obtained verdict and judgment for $625.

The first objection made by defendants' counsel against this judgment is that no action for malicious prosecution will lie unless there has been an arrest of the person or a seizure of property. The declaration in the case in the first count substantially charged a malicious suing out of the writ without probable or reasonable cause, a seizure of the goods in the plaintiffs' store under said writ, and a possession of the same taken and held for a half day, disturbing and injuring the business of plaintiffs; and that the defendants withdrew the sheriff from the store upon the promise of the plaintiffs, under compulsion of said levy and attachment, to pay the claim of Hinchman & Sons on a certain day, which payment was duly made by plaintiffs; that the attachment was known to many of the customers of plaintiffs in Detroit and elsewhere, and to the public generally, and to merchants in the cities of Detroit, Boston, New York, Philadelphia, and elsewhere, with whom the plaintiffs had dealings; that plaintiffs were thereby greatly injured in their credit and reputation, and put to great expense in obtaining a dissolution of said writ of attachment. The second count reads as follows: "And whereas, also, the said defendants, further contriving and maliciously and wickedly intending as aforesaid, heretofore, to-wit, at the time and place, and in the manner aforesaid, did falsely, and maliciously, and without reasonable or probable cause, sue out and prosecute, and cause to be sued out and prosecuted, the writ of attachment as aforesaid, commanding the sheriff, etc., as aforesaid, and the said sheriff attached certain property of said plaintiffs in the county of Wayne as aforesaid, pursuing the directions of said defendant and his agents, belonging to said plaintiffs, which said property was of great value, to-wit, $10,000; the said defendants wickedly and maliciously intending by said large, excessive, and unnecessary seizure and attachment of said property as aforesaid to injure and annoy said plaintiffs. And the said plaintiffs say that, by reason of the premises, they were greatly injured in their credit and reputation, and put to great inconvenience and expense, at, to-wit, Detroit aforesaid, and elsewhere, to the damage of the said plaintiffs ten thousand dollars."

While in this case there was no service of the writ, there was at least a technical taking and possession of the property. The officer when in the store to make the levy, and...