Le Clear v. Perkins

• Decision Date: 18 December 1894
• Citation: 103 Mich. 131,61 N.W. 357
• Court: Michigan Supreme Court
• Parties: LE CLEAR v. PERKINS ET AL.

61 N.W. 357

103 Mich. 131

LE CLEAR v. PERKINS ET AL.

Supreme Court of Michigan

December 18, 1894

Error to circuit court, Kent county; William E. Grove, Judge.

Action by Frank B. Le Clear against Thomas B. Perkins and Fidelia M Richmond. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Maher & Salsbury, for appellant.

Sweet &amp Perkins, for appellees.

LONG J.

This is an action for damages for the malicious prosecution of a writ of attachment. The writ of attachment was issued and levy made February 24, 1891. It was dissolved by an order of Judge Adsit, of the Kent circuit, March 7, 1891. This suit was commenced October 19, 1893. The ground of issuing the attachment was that the defendant in the writ (plaintiff here) was about to assign and dispose of his property with intent to defraud his creditors. Mr. Le Clear, the defendant in the writ, was a photographer at Grand Rapids, and was indebted to defendants in the sum of about $500. Before the writ of attachment was sued out, a Miss Sherman, who was an employ� of Le Clear, came to Mr. Perkins, one of the defendants, and made certain statements as to Le Clear's affairs. Mr. Perkins testified upon the present trial as to what was said on that occasion by Miss Sherman, as follows "Q. State what, if any, conversation you had with Miss Sherman, leading to the attachment which you commenced. A. Miss Sherman had spoken to me about getting her another position three or four days before this attachment. The attachment was commenced on Tuesday, February 24th. On Saturday before the attachment, she came into the store, and asked if I had heard of any position for her and it was then that this conversation took place in reference to why she wanted to or was going away from Mr. Le Clear's. She said it was because business was so dull that he could not keep her any longer. I asked her how dull the business was. She says, 'Next to nothing.' I said: 'How many negatives is that?' She says, 'A good many days we don't make a negative, and in one week was only one negative, and that was of some flowers.' And I says, 'How is it that he can pay expenses on so little work as that?' and she said he could not, as she saw; she didn't see how he could. And I said, 'It looks to me as though our claim was in a pretty poor shape.' She says, 'How much is your claim?' I told her it was a little more than $500. 'Well,' she said, 'I don't see how you are ever going to get it, because he owes so much already, and his creditors are pushing him so hard for their claims that he has resorted to hiding from them, and asking me to state when they came that he is not there, when in fact he is. He has also expressed himself as afraid of you,-particularly so.' I think, right then, I asked her why she was going to Cadillac, when I saw her a few days before,-if she had expected to get a job there,-and she said, 'No; I was going on business there for Mr. Le Clear.' I said, 'What business for Mr. Le Clear up there?' And she said, 'To borrow money.' I inquired from whom, and she told me Dr. Ward, a friend of hers that was there, that loaned money sometimes. I asked her what security Le Clear proposed to give to this Dr. Ward, and she said, 'A chattel mortgage on the gallery.' Q. Was the amount mentioned? A. Yes; I think that she said $1,250 was the amount he wanted; but she said he had failed to get that money, and that now he was going to Detroit, and asked her to wait until he could get back. I said, 'When is he going to Detroit?' She said, 'In a day or two, but he don't want me to let any one know that.' And I said, 'What does that mean,-that he don't want any one to know it? Does that mean mischief?' 'Well, she says, 'you can draw your own conclusions as to what it means.' I says, 'Don't it look to you as though he intends to do something that he don't want the creditors to know?' She says, 'That is the way it looks.' And I says, 'What do you think that means?' She says, 'I think it means that he intends to transfer his gallery to his father.' 'Why do you think that?' Because his father, when here a short time before, told Frank that he would not help him one more dollar until he had either turned the gallery over to him, or given him a mortgage for security; that Frank had refused to do that, on the ground that if the 'old man,' as he called him, got hold of it, he (Frank) would be left out in the cold, and have nothing, and that he at that time was expecting or hoped to get money from this Cadillac party, but now that he had failed in that he was going to Detroit, as she believed, 'to turn his gallery over to him, as the last resort.' Then I said: 'That would look as though it would be necessary for me, in order to secure myself, to make some move, and that right away. Wouldn't it to you?' She says: 'Yes, I do. If you can secure yourself, I would do it; but, whatever you do, do at once, because I believe if he goes to Detroit he will transfer the gallery, and you will never get a cent out of your claim.' Q. I will ask you, Mr. Perkins, what information, if any, at that time, you had, relative to the amount of Frank Le Clear's indebtedness? A. I knew at that time that he owed nearly all of these claims that he has testified about himself, including- Q. From whom did you get your information? A. A great majority from Frank himself, and some from Miss Sherman at that time. Q. Did you get this from Frank in his conversation? A. No. He had been telling me at different times within the past,-we will say two or three months prior to this February 24th, when I had been talking with him about paying our debt. Q. Did he volunteer the information in regard to other indebtedness? A. He had offered that as an excuse, where he had made some other payments, for not paying ours. Then I had quizzed him as to what he was owing, and found out that he was owing the Phoenix people, which I had no idea that he was owing; knew he had bought his house on a contract. And the Ocher & Ford matter,-I did not know anything about it until I asked him about it, what he was owing so much for, something like that. Q. Had you asked him about that, and received information about it, prior to this talk with Miss Sherman? A. Yes, sir. Q. After that conversation, what was the next thing you did, or what did you do, if anything, regarding the collection of that claim? A. This conversation took place on Saturday,-I have referred to,-and Monday I went to Mess. Butterfield & Keeney, and saw Mr. Butterfield, and told him all the facts that I have set forth, as near as I can remember now, and asked him if there was anything I could do to protect myself against a loss in that case. Mr. Butterfield thought a few moments, and he says: 'Yes; you can get out a writ of attachment. It is your only course to pursue.' Q. What was done then? A. He called Mr. Kenney, who had just come in, I think, from the outside- Q. That is his partner? A. His partner-into the office, and told him what had been said; and he says: 'I have advised a writ of attachment. What do you think of it?' Mr. Keeney says, 'I don't see any other chance for him, or any other way for him to proceed.' Mr. Butterfield says to him then to 'go on and draw up this writ'; that he himself had to go, I think, to Lansing. Q. Well, what was done? A. And Mr. Keeney did go on and draw up this paper, and the next day I went down there in the morning, and swore to it, and he called the sheriff over, and put the papers in his hands to serve. Q. I would like to know why you consulted Butterfield & Keeney with regard to this Matter? A. Well, I considered Mr. Butterfield,-I don't know about Mr. Keeney,-but I considered Mr. Butterfield about as good authority as we had here, and I thought I wanted the best counsel I could get. Q. Did you know anything about his character and standing as an attorney? A. I had always heard him spoken of in the very highest terms."

Mr Butterfield, the attorney referred to by Mr. Perkins, was called as a witness, and testified to statements made by Mr. Perkins to him, and the advice he gave him, as follows: "Q. You may please proceed to state what the facts stated to you by Mr. Perkins with reference to that claim against Mr. Le Clear were. A. I do not think, Mr. Sweet, I could give the language. I certainly would not undertake to after three years' time. But in substance it was this: He said that Mr. Le Clear was indebted to him in a large amount; that he had been carrying him, and that he had made numerous promises; that he had great confidence in him, I think, and that he had just found out that he was hopelessly in debt, and that he was going to Detroit for the purpose of putting his property-entire property-which he had out of his hands. I think he mentioned the conveyance to his father, or some member of the family. My impression is he said something about some property which had already been transferred, but I could not identify that. Q. I will ask you if Mr. Perkins said he knew that this was to be done, or stated that he had reason to believe it was to be done? A. What he stated to me was that he had learned it from some source; it was a bookkeeper or clerk, or somebody, of Mr. Le Clear's, from whom he said he got his information. I could not identify the person, but he seemed to be very certain his facts were true. Q. Upon that statement of facts on his part, what did you advise, if anything? A. The commencement of an attachment suit." Cross-examined by Mr. Maher: "fQ. Did Mr. Perkins tell you what the extent of Mr. Le Clear's indebtedness was? A. He may have done so, but my impression is he simply confined himself to the statement that he owed so much that he had no hope of paying. Q. That he owed so much he had no hope of paying? A. Yes; some...