Brewer v. Jacobs

• Decision Date: 15 March 1884
• Citation: 22 F. 217
• Court: U.S. District Court — Western District of Tennessee
• Parties: BREWER v. JACOBS and another.

22 F. 217

BREWER v. JACOBS and another.

United States Circuit Court, W.D. Tennessee.

March 15, 1884

The plaintiff, in the year 1880 and before, was carrying on a cotton plantation in Arkansas, on the Mississippi river below Memphis Tennessee. As usual in that business, he had an arrangement with Richardson & May, of New Orleans, to furnish him money and supplies for the plantation, securing them by a mortgage on his interest in the crops, stock, farming implements, etc. A part of the plantation-- about 90 acres-- was known as the 'Malone Place;' there being 600 acres in cultivation in the whole farm. With the consent of Richardson & May, the plaintiff made an arrangement with the defendants for supplies to be furnished at Memphis, on the security of the crops on the Malone place, and when the account was settled there was a balance due the defendants of about $400.

In the following year, 1881, the plaintiff made another arrangement with Richardson & May for advances and supplies for that year, executing a mortgage as before. This mortgage was sent by Richardson & May to Brewer, to be by him executed and recorded in the county where the land was situated. He did not file it for record immediately, nor until sometime in May or June, when he sent it to the clerk of the county to be recorded, either unsigned or not properly acknowledged, and the clerk did not record it. During the spring the plaintiff desired to make an arrangement with defendants similar to the one he had made before, and, according to defendants' contention, promised to make to them a mortgage on the Malone place, which he told them was not included in the Richardson & May mortgage of that year, and to have the tenants of that place join in the mortgage, as he was to get the supplies for them. According to the plaintiff's contention, he only promised, with Richardson & May's consent, to ship to defendants the cotton grown on the Malone place. The defendants refused, as they contend, to advance on any other terms than security for the old balance as well as new advances, but, under pressure and a promise to send up the mortgage, advanced $75, and agreed to advance $125 additional when the mortgage was made.

The plaintiff drew some small orders, which were refused payment by defendants. The parties became involved in an acrimonious controversy as to the terms of the agreement, the details of which it is not necessary to report, except that the plaintiff tendered a check on Richardson & May for $75, for the money paid him, and offered to abandon the agreement which was refused for some reason, and afterwards offered, as he contends, a mortgage on cotton-seed, if not included in Richardson & May's mortgage, but ultimately signed a mortgage drawn up by defendants before a notary, which they did not take because of some complaint of a want of Richardson & May's consent.

These negotiations for settlement and compromise, about which there was great conflict in the proof, as well as about the original agreement, all failed. The Richardson & May unexecuted mortgage fell into the hands of defendants, and observing that the Malone place was included in it, the defendants, as they contend, conceived this to be a fraud upon them, and applied to their lawyer, stating the facts and showing the unexecuted mortgage. There was a contention in the proof as to whether all the material facts were stated but the lawyer advised an attachment. The defendants made the necessary affidavits under the attachment laws of Arkansas that the plaintiff was about to fraudulently convey his property, and on July 16, 1881, the attachment was levied on the growing crops of the plaintiff, cultivated by day labor on his horses and mules and gin-stands, and by garnishment on the shares of the crops due the plaintiff from the croppers on share. The horses and mules were left with the plaintiff by the sheriff, and an agent was appointed to watch the crops, some of which were afterwards seized on an execution in favor of defendants for their debt, and sold to satisfy it.

There was much proof and conflicting testimony as to the conduct of the sheriff and a brother of one of the defendants about the business of making the levy, and the subsequent proceedings in watching the crops. The attachment suit was removed by the plaintiff from the state court to the federal court in Arkansas, where, on the trial, it was decided in his favor. He therefore brought his suit for the wrongful suing out of the attachment, maliciously and without probable cause, alleging that the negro laborers were so demoralized by the levy of the attachment that they abandoned the crops, which fell short for want of work which he could not supply, under the circumstances of loss of credit, time of the season, want of confidence in his ability to carry out his contracts with them, want of supplies for their support, etc. Damages were also claimed for excessive levies.

About all this there was much conflict in the proof, the defendants contending that the property was left with the plaintiff; that the desertion of the laborers proceeded from the plaintiff's bad management and conduct towards them, if there was any desertion at all, which was denied. There was a verdict of $2,250 for the plaintiff.

When the case was called for trial, counsel for defendants stated that they had an arrangement with one of the counsel for plaintiff, who was a member of congress, to pass it until his return from Washington, but that if the plaintiff insisted on a trial the defendants would be ready on a day named, to which the trial was adjourned. On that day the plaintiff moved to amend his declaration by adding a more specific allegation of special damages, to which the defendants objected unless the case was continued. To avoid a continuance, plaintiff withdrew his motion to amend and the trial proceeded, a large number of witnesses being examined on both sides.

After the argument was commenced, the jury was retired, and plaintiff renewed his motion to amend the declaration on the ground that, after the time and expense of the trial, it was probable the result would be, at most, only a nominal verdict for the plaintiff or a verdict for the defendants, because of the want of sufficiently full allegations of the special damages relied on in the proof. The court stated that the proof had developed a substantial controversy between the parties which mainly depended on the view to be taken by the jury of the facts as they should find them in the great conflict of testimony, and that, as the case had progressed so far, it seemed better to submit it to the jury on a declaration sufficient to raise the issues than to force a nonsuit which the plaintiff could take, under the practice, at any time before the case was submitted to the jury, or to enter a mistrial and continue the case, as the defendants insisted should be done. But as the plaintiff had deliberately gone to trial on his declaration, it was doubtful whether he should be allowed to now amend, notwithstanding the liberal provisions of the statute, except under the penalty of a continuance and costs; and therefore the amendment would be permitted for the sole purpose of reaching the judgment of the jury on the facts, but reserving to the defendants, on the motion for a new trial, every question they could make on the motion to amend, as if this course had not been taken. Whereupon the amendment was made, and there was a verdict for the plaintiff.

On motion for a new trial, the defendants produced affidavits of many witnesses, not examined at the trial, to show that they could have made a better case if the declaration as amended had been originally filed in that form, or if they had been made at an earlier stage of the proceedings. The plaintiff presented counter-affidavits, and insisted that the large number of witnesses produced at the trial and the fullness of the proof showed that they were fully aware of the real issues, and were not surprised or taken at a disadvantage by the amendment.

Another ground of a motion for a new trial was that one of the jurors, James Gray, was a minor, and disqualified, under the statute, as a juror; that James Gray, Sr., had been really drawn from the box, and this James Gray, Jr., had in some way become substituted for the other; that the defendants were not aware of these facts till after the trial, and that they did not challenge him because of their ignorance of the fact, and because, by the practice of the court, each juror was examined when called as to his qualifications, and they were relying on truthful answers by the jurors at the time they were received for the term by the court. Affidavits were presented to sustain this ground of the motion.

On the trial of the case, the court, HAMMOND, J., charged the jury as follows:

1. The Affidavit.

Gentlemen of the Jury: Apart from any question of the effect of the judgment of the court in Arkansas against the attachment there can be no doubt, on the facts proved in this case which are not at all disputed, that the statements of the affidavit for attachment were untrue, and the plaintiff has shown by the proof here that there was no legal ground for the attachment of his property under the laws of Arkansas.

2. Probable Cause.

The court does not hesitate to assume the responsibility of saying to you that-- on the facts proved in the case about which there is no dispute, and taking them to be just as the defendants claim they were, where there is any conflict-- there was no probable cause whatever for the attachment.

3. Malice.

But the entire absence of probable cause for the attachment does not of itself entitle the plaintiff here to recover damages against the defendants for suing the...