Clewis v. Malone

• Decision Date: 29 October 1898
• Parties: CLEWIS v. MALONE ET AL.
• Court: Alabama Supreme Court

24 So. 767

119 Ala. 312

CLEWIS v. MALONE ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by E. L. Clewis against Malone & Sons on an indemnity bond in attachment. From a judgment for defendants, plaintiff appeals. Reversed.

For the purpose of having the writ of attachment levied, Paul Jones &amp Co. executed an indemnifying bond, with the appellees, Malone & Sons, as sureties thereon. After the execution of this bond of indemnity, the writ of attachment was levied by the sheriff on January 17, 1895, upon a stock of goods which was in the possession of said G. E. Clewis, and subsequently was sold by the sheriff under said levy. Thereupon the appellant E. L. Clewis, brought the present action against the appellees, Malone & Sons, as sureties on the indemnity bond executed by Paul Jones & Co., to recover damages for the wrongful levy and sale of the stock of goods; the plaintiff claiming that at the time of said levy and sale she was the owner of the property so levied upon and sold. Upon the trial of the case the testimony for the plaintiff tended to show that G. E. Clewis was, in December, 1894, indebted to his brother, B. Clewis, in the sum of $1,000; that B. Clewis was the husband of E. L. Clewis, and that the indebtedness was due for services rendered by B. Clewis for G. E. Clewis, and for money borrowed from him by G. E. Clewis; that, for the purpose of securing the payment of this indebtedness, G. E Clewis, at the request of his brother, B. Clewis, on December 17, 1894, executed a note and mortgage for $1,000 to the plaintiff, E. L. Clewis; that subsequently, on January 4 1895, G. E. Clewis, at the request of B. Clewis, executed a bill of sale of the stock of goods involved in this controversy to E. L. Clewis, and that said bill of sale was in absolute payment of the indebtedness due B. Clewis from G E. Clewis; that at the time of the levy of the attachment sued out by Paul Jones & Co. G. E. Clewis was in possession of said stock of goods as the authorized agent of E. L Clewis. This bill of sale was introduced in evidence, and there was also introduced in evidence a power of attorney, which was executed by E. L. Clewis, constituting and making G. E. Clewis her duly-authorized agent and attorney in fact in conducting the business and taking possession of the stock of goods involved in this controversy. This power of attorney was executed on January 5, 1895. It was further shown that at the time of the execution of the bill of sale by G. E. Clewis to E. L. Clewis and at the time of the execution of the power of attorney by E. L. Clewis to G. E. Clewis the said E. L. Clewis and her husband, B. Clewis, lived in Georgia, and that each of said instruments was executed in Georgia. The evidence for the plaintiff further tended to show that at the time of the execution of the bill of sale there was no understanding or agreement between the plaintiff and G. E. Clewis that he was to be employed as a clerk in said store, or as the agent of said E. L. Clewis, and that his appointment was made after the execution of the bill of sale, and was a separate and distinct transaction. After proving the execution of the note and mortgage executed by G. E. Clewis to the plaintiff, the defendant offered them in evidence, and to the introduction of these papers in evidence the plaintiff objected on the ground that they were irrelevant and immaterial, and because they did not tend to show that the title to the property was in G. E. Clewis, or that there was fraud in the sale. The court overruled this objection, and the plaintiff duly excepted. The defendant proved the debt from G. E. Clewis to Paul Jones & Co. at the time of the levy of the attachment, and introduced in evidence the writ of attachment, bond, and affidavit, and proved the levy of said writ and sale of the property, and further proved that the proceeds of said sale, which were paid to Paul Jones & Co., were not sufficient to pay the debt. The court refused to give, at the request of the plaintiff, the general affirmative charge in her behalf, to which ruling the plaintiff duly excepted. The court, at the request of the plaintiff, gave to the jury the following written charge: "If the jury are reasonably satisfied from the evidence that G. E. Clewis at the time of sale was a resident of the state, and that the property owned by him in this state was not worth more than one thousand dollars, and that he sold the same to E. L. Clewis, then they need make no further investigation, and their verdict will be for the...