Brown v. Master

• Decision Date: 09 November 1894
• Parties: BROWN v. MASTER.
• Court: Alabama Supreme Court

16 So. 443

104 Ala. 451

BROWN v. MASTER.

Supreme Court of Alabama

November 9, 1894

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Margaret Master against Annie Brown for damages on account of a wrongful attachment. There was a judgment for plaintiff and defendant appeals. Reversed.

The affidavit of the defendant, Annie Brown, upon which the attachment was issued, stated as a ground for the issuance of said attachment "that said Maggie Master has made substantially a transfer of her stock of goods in the store which she rented from affiant, without her consent, and without having first paid the rent in full for the term." The defendant demurred to the first count of the complaint upon the following grounds: First. The said count fails to negative or deny that any statutory ground existed for the issuance of said attachment. Second. Because it fails to allege that the defendant did not have probable cause for believing that some one of the statutory grounds for attachment existed at the time of the suing out of said attachment. Third. Because it fails to deny the defendant had probable cause for suing out said attachment. The fourth ground of demurrer is stated in the opinion. Fifth. Because it fails to allege that said defendant caused said attachment to be issued wrongfully, maliciously, and without probable cause. Sixth. There is a misjoinder of actions in the said count as enumerated in the fourth ground of demurrer. Seventh. There is an improper joinder of actions as enumerated in the fourth ground of demurrer. To the second count of the complaint the defendant demurred upon the following grounds: First. That said count is ambiguous and uncertain in stating several independent causes of action without disclosing which is relied on, to wit: (1) Trespass to realty; (2) trespass to personalty; (3) procuring attachment wrongfully and maliciously and without sufficient affidavit; (4) causing levy wrongfully, maliciously, and vexatiously; (5) for unlawful detention of goods. Second. There is a misjoinder of actions in said count as enumerated in the first ground of demurrer. Third. There is an improper joinder of actions in said count as enumerated in the first ground of demurrer. These several grounds of demurrer were overruled. The defendant then interposed the following pleas upon which issue was joined: "(1) Comes the defendant and for answer to the first count says that said attachment was not maliciously sued out by her. (2) And for answer to the second count she says that, further than to make the affidavit set forth in the complaint, and casually to be present when the levy was made, this defendant is not guilty of the matter alleged in said second count. (3) And for further answer to the complaint the defendant sayeth that she is not guilty of the matters alleged therein."

The evidence for the plaintiff tended to show that she rented the storehouse from the defendant for a term commencing from May 15, 1891, to November 1, 1891, at the rate of $16 per month payable in advance; that she paid two weeks' rent in advance prior to moving into the store; that her stock of goods in the store was worth from $750 to $1,000; that a few days after she moved into the storehouse, while she was away from the city of Mobile, the defendant caused a writ of attachment to be issued and levied upon a part of the stock of goods in her storehouse, and had the same removed therefrom; that prior to her leaving Mobile, just before the levy of the attachment, her uncle, one Blalack, had offered to buy the goods, and that she said to him that she would not sell the stock of goods unless she could obtain the consent of the agent of the defendant, through whom she had rented the property, that the lease was transferred to Mr. Blalack, but that no sale had been consummated at the time of the levy, nor had she sold any portion of the goods except in the regular course of trade. The evidence for the plaintiff also tended to show that at the time of the levy of the attachment her sister, a girl 17 years old, who was in possession of the goods, was rudely treated by the defendant and the constable who levied the attachment, and that her stock of goods was torn up and very much damaged. The testimony for the defendant tended to show that the storehouse in question was rented to the plaintiff on May 8, 1891, the terms of the lease commencing May 15, 1891, and that the plaintiff went into possession on May 9, 1891; that her agent, J. K. Glennon, was informed that the plaintiff was selling off a substantial portion of her stock of goods, and that Blalack had told him that the plaintiff was thinking of selling to him; that thereupon the defendant, with her agent, went to an attorney, who advised the issue of an attachment, and that upon this advice she made the affidavit, and had the attachment issued accordingly. The testimony for the defendant was in conflict with that of the plaintiff as to the manner in which the levy was made and the value of the goods levied upon; her testimony tending to show that there was only about $30 worth of goods taken by the constable under the writ of attachment. J. K. Glennon was introduced as a witness for the defendant, and testified: That he was a real estate agent in the city of Mobile, and had been such for a number of years. That he, as agent for the defendant, rented the storehouse in question to the plaintiff. That he wrote a letter on May 15, 1891, to Mrs. Brown, of which the following is a copy: "I made inquiry to-day in reference to your new tenant, and find that she has been keeping a store at Biloxi, and her property down there, both real and personal, has been levied upon, and the goods that she has up here are hid away from the officers. I also learn that she is not of good character. She has been trying to negotiate with a party for the sale of the stuff, but I gave him to understand that if he bought the goods that we would hold him, liable for the rent of the store from now until the first of November. If you see them moving any more goods out let me know, and I will get out an attachment on them." The counsel for the defendant then asked the witness, "On what information did you write that letter?" The court sustained the plaintiff's objection to this question, and the defendant excepted. Counsel for the defendant then asked the witness the following question: "From whom did you ascertain that Maggie Master was of bad character?" The plaintiff objected to this question, which objection was sustained, and the defendant duly excepted. Attorney for the defendant then asked the witness the following question: "Did you make inquiry as to the facts on which you based that letter?" The court sustained the plaintiff's objection to this question, and the defendant duly excepted. Upon the witness further testifying that he had made inquiry about the plaintiff before writing that letter, counsel for the defendant asked him the following question: "What was the character of said inquiry?" The plaintiff objected to this question, and the defendant duly excepted. The said witness, after testifying on direct examination that the price at which the said property was rented to the plaintiff was the full rental value of the property, the counsel for the plaintiff asked the witness Glennon the following question: "Did you send word to the plaintiff that if she wanted to keep the premises at the end of the lease she would have to pay $16.65?" The defendant objected to this question, on the ground that the evidence sought to be adduced was incompetent, irrelevant, and immaterial; but the court overruled the objection, and the defendant duly excepted. The witness answered that he did not know whether he sent such notice or not, but that it was customary for real-estate agents to send out about June 15th of each year notices to all of their tenants requesting them to notify them whether or not they proposed to keep the premises for the following year, and also the terms upon which said premises could be retained. The defendant then offered to introduce in evidence the said letter, written by J. K. Glennon to her. Plaintiff objected. which objection was sustained by the court, and the defendant duly excepted.

The court, among other things, in its general charge instructed the jury as follows: (1) "Whatever is done wrongfully vexatiously, and purposely, is in law maliciously done." (2) "If you find that the attachment is vexatiously as well as wrongfully sued out, you can give the plaintiff exemplary or vindictive damages." (3) "In assessing plaintiff's damages, should you find for the plaintiff, you may take into consideration any threats or insulting words used to her sister during the making of the levy." The defendant separately excepted to each of these several portions of the court's general charge, and also separately excepted to the court's refusal to give each of the following written charges requested by her: (3) "Unless the jury believe from the evidence that the defendant maliciously caused the attachment to be issued, they must find her not guilty as to the first count." (4) "Unless the jury believe from the evidence that the attachment was wrongfully, maliciously, and without probable cause caused to be issued by the defendant, they should find the defendant not guilty as to the first count." (5) "If the jury believe from the evidence that the defendant did not sue out the attachment with malice, or from a disposition to vex and harass the plaintiff, but honestly believed that she had reasonable and probable cause to sue out the attachment at the time said attachment was sued out, then the plaintiff is not entitled to recover in this action for the suing out of said attachment." (6) "The...