Grisham v. Bodman

• Decision Date: 09 June 1896
• Citation: 20 So. 514,111 Ala. 194
• Parties: GRISHAM, SHERIFF, ET AL. v. BODMAN.
• Court: Alabama Supreme Court

20 So. 514

111 Ala. 194

GRISHAM, SHERIFF, ET AL. v. BODMAN.

Supreme Court of Alabama

June 9, 1896

Appeal from circuit court, Colbert county; Thos. R. Roulhac, Judge.

Action by Fred D. Bodman against Shelby Grisham, sheriff, and others. There was judgment for plaintiff, and defendants appeal. Reversed.

This was an action of trespass brought by the appellee, Fred D Bodman, against the appellants, Shelby Grisham, sheriff of Colbert county, and C. G. Mason, as surety on the indemnifying bond made by the plaintiff in an attachment suit of C. I. Watson against Kirby & Sons, and sought to recover for the wrongful levy and taking of property under the writ of attachment. The defendants introduced evidence tending to show that in the sale by Kirby & Sons to Bodman there was fraud, and that the sale was made for the purpose of hindering, delaying, and defrauding the creditors of Kirby &amp Sons. The plaintiff moved to exclude all of this evidence from the jury, because the judgment in the attachment suit of Watson v. Kirby & Sons showed that Kirby & Sons were not indebted to Watson at the time the attachment suit was instituted. The court sustained this motion, and excluded said evidence, and to this ruling the defendants duly excepted. The defendants also offered in evidence the attachment and sheriff's return thereof in the case of Harris Bros. against Kirby & Sons, for the purpose of showing that the same property levied upon in the case of Watson v Kirby & Sons was also levied upon by the sheriff under the writ of attachment issued in the case of Harris Bros. v Kirby & Sons. The plaintiff objected to the introduction of this evidence. The court sustained the objection, and to this ruling the defendants duly excepted. The court, in its oral charge, instructed the jury as follows: "The judgment in the case of C. I. Watson v. Kirby & Sons shows that, at the time Watson sued out the attachment, Kirby & Sons were not indebted to him, and therefore the attachment was unlawful and wrongful; and in this case the only question for you to decide is the amount of damages which the plaintiff is entitled to recover." To the giving of this portion of the court's oral charge the defendants duly excepted, and also separately excepted to the court's refusal to give each of the following written charges, requested by them: (1) "The question of indebtedness of Kirby & Sons to C. I. Watson cannot be considered by you in making up your verdict, except for the purpose of determining whether or not Kirby & Sons were insolvent." (2) "If the jury believe from the evidence that the harness and wagons were put in the bill of sale to prevent the other creditors from attaching them, then your verdict should be for the defendants." (3) "If the bill of sale was not intended as a bona fide sale of the property, but was made to enable them to move the property out of the state, and evade their creditors, then the title to the property did not pass to Bodman & Co. under the bill of sale." (4) "Fraud, like crime, may be proved by circumstances." (5) "The plaintiff could not recover more damages for the lumber he bought at the sheriff's sale than [the price] he paid the sheriff, with interest." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the rulings of the trial court upon the evidence, the giving of the portion of the general charge excepted to, and the refusal of the court to give the several charges requested by them.

Candler & Candler and Kirk & Almon, for appellants.

Thos. G. Jones, for appellee.

McCLELLAN J.

This is an action of trespass de bonis, etc., prosecuted by Bodman against Grisham and Mason. The goods were taken by Grisham as sheriff, under a writ of attachment, and Mason was his indemnitor in respect of the levy. This writ issued at the suit of Watson against Kirby & Sons, and was levied on the property as belonging to the latter, though it was at the time in the possession of Bodman, to whom Kirby & Sons had just previously sold it in payment of a debt, as was alleged. The defendants sought to justify under the writ, averring that the sale and transfer by Kirby & Sons to Bodman was made "for the purpose of hindering, delaying, and defrauding said Watson and the other creditors of Kirby & Sons," etc., and was therefore fraudulent and void, etc. This was the only defense attempted to be made, and it utterly failed on the evidence. One essential constituent of it, that Watson was a creditor of Kirby & Sons, was not only not proved on the trial, but was affirmatively disproved. It was not only not shown that, at the time of the sale and transfer by Kirby & Sons to Bodman, the former were indebted to Watson, but, to the contrary, it was clearly shown by the pleadings and judgment in the attachment suit that they were not indebted to him at that time. The indebtedness claimed by Watson was $900 for a lot of logs which he alleged in his complaint in the attachment suit he sold to Kirby & Sons on November 6 1894, and for which, he further alleged, they promised to pay him at the price of $5 per 1,000 feet, and that the logs measured 20,000 feet, "making the amount due him $1,000, on which Kirby & Sons had paid him $100," leaving the balance sued for. To this complaint, the defendants, Kirby & Sons, pleaded recoupment. This plea was sustained on the trial, and the defendants upon it had judgment, over against Watson, for $127.37. It is insisted by counsel for appellants that this judgment was not evidence that Kirby & Sons did not owe Watson the demand, upon which the attachment suit was brought, for it is argued that the judgment "shows that it was rendered against Watson on defendants' plea of set-off, whereby it was admitted that the plaintiff had a good cause for action, a debt against Kirby & Sons, which was defeated only by the plea of set-off, which may or may not be interposed by the defendant," etc. All this may be conceded in respect of a plea of set-off and judgment sustaining it. That plea does, indeed, confess the debt sued on, but says plaintiff ought not to have judgment therefor, because he owes the defendant a debt, which the latter elects and offers to set off against the claim in suit. But counsel overlook the fact that the plea here was not set-off at all, but recoupment,-a very different defense,-the gist and essence of which is that the defendant does not owe the claim sued on, because, in and about the transaction out of which plaintiff's supposed and relied-on cause of action arose, he has suffered such damages, through plaintiff's violations of his obligations and omissions of duties in the premises, as, when put against what plaintiff would have been entitled to recover but for such omissions and infractions, reduce or destroy his claim. Recoupment is not merely a cross action, as is set-off. The plea does not confess the indebtedness counted on in the complaint, and bring forward a counter indebtedness from the plaintiff to the defendant, as does the plea of set-off; but its proposition is that plaintiff's claim is based upon a particular contract or transaction; that, to entitle the plaintiff to the sum he claims, it was upon him to comply with certain obligations of the contract, or to discharge certain duties which the law imposed upon him in the making or performance of the contract; that he has failed to comply with such obligations, or to discharge such duties; and that thereby the defendant has been so damaged in the particular transaction, or in respect of the particular contract, that the plaintiff is not entitled to recover; or, in other words, that the plaintiff has no debt, or a less debt than he claims, as the case may be, against the defendant. For, as said by Christiancy, J., "a defense by way of recoupment denies the validity of the plaintiff's cause of action to so large an amount as he claims. It is not an independent cross claim, like a separate and distinct debt or item of account due from the plaintiff, but is confined to matters arising out of or connected with the transaction or contract which forms the basis of plaintiff's action. It goes only in abatement or reduction of plaintiff's claim, and can be used as a substitute only to the extent of plaintiff's demand. No judgment can be obtained by the defendant for any balance in his favor." McHardy v. Wadsworth, 8 Mich. 349; Wat. Set-Off, p. 482, § 466. And so it is said by the supreme court of Georgia: "The doctrine of recoupment is but a liberal and beneficial improvement upon the old doctrine of failure of consideration. It looks through the whole contract, treating it as an entirety, and treating the things done and stipulated to be done on one side as the consideration for the things done or stipulated to be done on the other." Lufburrow v. Henderson, 30 Ga. 482 . While recoupment is at common law, in some sense, a means of enforcing a cause of action by the defendant against plaintiff, either wholly or partially, as the defendant's claim for damages may or may not be less or greater than plaintiffs demand, yet such cause of action is enforced, not as an independent claim or debt of the defendant, but by way merely of cutting off, reducing the plaintiff's claim; so that the effect and result of a plea of recoupment sustained is an adjudication that, to the extent of the sum recouped, the plaintiff had no claim or debt. "For," as said by Mr. Parsons, "the essential difference between recoupment or reduction, on the one hand, and set-off, on the other, is that in set-off the ground taken by the defendant is that he may owe the plaintiff what he claims, but that a part or the whole of the debt is paid in reason and justice by a distinct and unconnected debt which the plaintiff owes him;" while on a plea of...