Crymble v. Mulvaney

• Citation: 40 P. 499,21 Colo. 203
• Parties: CRYMBLE et al. v. MULVANEY. [1]
• Decision Date: 06 May 1895
• Court: Supreme Court of Colorado

40 P. 499

21 Colo. 203

CRYMBLE et al. v. MULVANEY. ^[1]

Supreme Court of Colorado

May 6, 1895

Appeal from district court, Chaffee county.

Action by Peter Mulvaney against Hugh Crymble and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

This is an action brought by the appellee to recover damages for the alleged unlawful taking of certain goods, wares, and merchandise by the appellants. The nature of the case, and the questions involved, can be better understood by a brief statement of so much of the pleadings as present the material issues. The complaint, inter alia, alleges in substance, that appellee was, at the time of the grievance complained of, a merchant carrying on a wholesale and retail business; that on or about the 18th of December, 1890, the C. S. Morey Mercantile Company placed in the hands of the other appellant, as sheriff of the county of Chaffee, a pretended writ of attachment, purporting to have been sued out of the district court to Arapahoe county, in the state of Colorado by the said C. S. Morey Mercantile Company, in a certain cause wherein it was plaintiff and the Salida Mercantile Company was defendant; that said Crymble, as sheriff, at the request and by the direction of said company, executed the writ of attachment by levying upon and taking into his possession, and from the possession of appellee, his entire stock in trade, consisting of groceries, hardware, harness farming implements, and other chattels; that, in so taking into his possession the goods and chattels complained of, the said Crymble unlawfully broke into the appellee's store and place of business, and took complete possession thereof and excluded appellee therefrom, completely stopping his trade and business, preventing him from continuing his business for the period of 20 days, to the appellee's damage in the sum of $1,000; that on the 7th day of January 1891, said Crymble returned to appellee a portion of the property so taken; that a part of said property was of a perishable nature, and had decayed and depreciated in value while unlawfully retained by said Crymble, to appellee's loss and damage in the sum of $200; that the market price of a portion of the goods so taken and held depreciated in value $300; that the value of the goods taken and retained was $7,000; that the taking of the property by said Crymble was attended with circumstances of malice and insult, and by wanton disregard of appellee's rights and feelings; that at the time of said unlawful taking he was conducting a prosperous business, and had large credit with wholesale and jobbing houses in Colorado, as well as with the citizens of Chaffee county; that by reason of the unlawful acts of appellants his trade and credit have been temporarily destroyed, and will be seriously injured for a long period in the future; and he has been financially cramped and distressed, to his damage in the sum of $10,000. Prays for judgment against appellants in the sum of $18,500, and for costs of suit. The answer of appellants admits that said Crymble, as sheriff of Chaffee county, at the request and by the direction of said appellant the C. S. Morey Mercantile Company, did execute the writ of attachment in said complaint mentioned, by levying upon and taking into his possession certain stock in trade, consisting of groceries, hardware, harness, wagons, farming implements, and other chattels, but denies that said goods were taken from the possession of appellee. Denies that Crymble, in the taking of the same into his possession, unlawfully broke into appellee's store or place of business. Alleges that the writ of attachment was sued out of the district court of Arapahoe county on the 17th day of December, 1890, in a certain suit wherein the C. S. Morey Mercantile Company was plaintiff and the Salida Mercantile Company was defendant, to secure the payment of a certain indebtedness due from the said Salida Mercantile Company, which said indebtedness was for the sum of $1,520.67; that judgment was rendered in favor of said plaintiff for said sum, and sustaining said attachment. They further allege that the Salida Mercantile Company was the owner of, and in possession of, the goods, wares, and merchandise taken by the said sheriff under said writ of attachment, but that intending to cheat, hinder, and defraud the C. S. Morey Mercantile Company, and the other creditors of said Salida Mercantile Company, and to put its effects out of the reach of said creditors, the said Salida Mercantile Company did fraudulently convey and assign its said goods, wares, and merchandise to appellee. Allege that there was no immediate, or any, change of possession of the said goods from the Salida Mercantile Company to appellee; that when the writs of attachment were levied upon said goods and chattels they were in the possession of said Salida Mercantile Company; that the appellee, for a long time prior to the pretended sale by the Salida Mercantile Company to him, was the vice president and general manager of the Salida Mercantile Company; that he had sole supervision of the business of said company; that said pretended sale was made and conducted by said manager to himself individually, and was made by the Salida Mercantile Company, and accepted by appellee, with the intent to hinder, delay, and defraud the C. S. Morey Mercantile Company, and other creditors of said Salida Mercantile Company. The cause was tried to a jury. Verdict and judgment for $6,849. To reverse this judgment, defendants below bring the case here on appeal.

O'Donnell & Decker, for appellants.

C. S. Libby, for appellee.

GODDARD J. (after stating the facts).

It will be seen from the foregoing statement that appellants attack the validity of the sale of the goods in question by the Salida Mercantile Company to appellee, upon the ground both of fraud in fact and fraud in law. In support of the first ground, while they do not question the adequacy of the consideration paid by appellee, or claim that he committed any fraud upon the company or its stockholders in purchasing the goods, they insist that by reason of his fiduciary and its manager, company, being a director and its manager, he was disqualified from purchasing at all, since in doing so he would act in a double capacity, and his interest as buyer would conflict with his duty as a director. It may be conceded that a director, under the principle that controls the law of agency, is incapacitated from acting in the capacity of buyer from the company, and at the same time as its agent in...